Scott v. Nampa & Meridian Irrigation District

• Court: Idaho Supreme Court
• Writing for the Court: BUDGE, C. J.
• Citation: Scott v. Nampa & Meridian Irrigation District, 45 P.2d 1062, 55 Idaho 672 (Idaho 1934)
• Decision Date: 28 December 1934
• Docket Number: 5842
• Parties: ELZUMER SCOTT, CARRIE M. SCOTT, JAMES R. STOTTS, MINNIE L. STOTTS, FRANK MARTIN, ELLA L. MARTIN, O. P. HENDERSHOT, SUSIE HAASER HENDERSHOT, CHARLES TRISLER, EMMA F. TRISLER, L. M. HUDGINS, LENA A. HUDGINS, A. W. CATE, LENA M. CATE, HARRY C. WYMAN, ANNIE R. WYMAN, LOTTIE BARNES BOESS, -- BOESS, EDWIN G. NASH, -- NASH, JOSEPH MAIER, LENA MAIER, B. F. KINYON, LULU KINYON, D. P. RICH, CARRIE RICH, IDA F. MELLINGER, CLARENCE M. PINE, J. O. MCDONALD, -- MCDONALD, MATHEW E. BECKER, SIBYL S. BECKER, FLORENCE D. HENKE, CYRUS Q. RUE, CORA RUE, J. F. ULMER, and ADA A. ULMER, Appellants, v. NAMPA & MERIDIAN IRRIGATION DISTRICT, Respondent

45 P.2d 1062

55 Idaho 672

ELZUMER SCOTT, CARRIE M. SCOTT, JAMES R. STOTTS, MINNIE L. STOTTS, FRANK MARTIN, ELLA L. MARTIN, O. P. HENDERSHOT, SUSIE HAASER HENDERSHOT, CHARLES TRISLER, EMMA F. TRISLER, L. M. HUDGINS, LENA A. HUDGINS, A. W. CATE, LENA M. CATE, HARRY C. WYMAN, ANNIE R. WYMAN, LOTTIE BARNES BOESS, -- BOESS, EDWIN G. NASH, -- NASH, JOSEPH MAIER, LENA MAIER, B. F. KINYON, LULU KINYON, D. P. RICH, CARRIE RICH, IDA F. MELLINGER, CLARENCE M. PINE, J. O. MCDONALD, -- MCDONALD, MATHEW E. BECKER, SIBYL S. BECKER, FLORENCE D. HENKE, CYRUS Q. RUE, CORA RUE, J. F. ULMER, and ADA A. ULMER, Appellants, v. NAMPA & MERIDIAN IRRIGATION DISTRICT, Respondent

No. 5842

Supreme Court of Idaho

December 28, 1934

WATER AND WATERCOURSES-IRRIGATION DISTRICTS-PRIORITIES AMONG USERS UNDER CANAL.

1. As respects various classes of users of water under statutory distribution system of irrigation district, priority of use determined in proper suit therefor gives superiority of right (I. C. A., sec. 41-804; Const., art. 15, secs. 4, 5).

2. Land owners who had right to use of water in irrigation canal under first appropriation of water by irrigation district were not bound by court order entered in suit to determine priorities of use of water to which neither they nor their predecessors in title were parties (I. C. A., sec. 41-804; Const., art. 15, secs. 4, 5).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Koelsch, District Judge.

Appeal from judgment refusing to enjoin cutting of water right by distributing system. Reversed and remanded, with instructions.

Reversed and remanded, with instructions. Costs awarded to appellants.

Martin & Martin, for Appellants.

By the use of water to irrigate their lands the plaintiffs' predecessors in interest and the plaintiffs have gained a prior right to the use thereof, of which the defendant cannot deprive them and with which the defendant has no right to interfere. (Const., art. 15, sec. 5; I. C. A., sec. 41-814; Brose v. Nampa & Meridian Irr. Dist., 24 Idaho 116 see beginning p. 123, 132 P. 799.)

McElroy & Chalfant, for Respondent.

Plaintiffs and defendant are bound by defendant's classification under sec. 41-804, I. C. A.:

"In the absence of and until the actual dates and the extent of the appropriation of the several users of water have been adjudicated and settled by the court in a proceeding brought in the courts for that purpose." (Par. 3, Brose v Nampa & Meridian Irr. Dist., 20 Idaho 281, 118 P. 504.)

The "several users of water" are indispensable parties. Plaintiffs cannot adjudicate a claim to decreed right NO. 67 in a suit to which the users generally are not parties.

Frank T. Wyman, R. B. Scatterday and Sidman I. Barber, as Amici Curiae, on Rehearing.

Virtual representation is required where the equitable owners are so numerous that it would be impracticable and unduly burdensome to require the presence of all in court, or where their relation to the owner of the legal title and the powers of the latter afford proper representation. (Story's Equity Pleading, 10th ed., sec. 207; 20 R. C. L. 670; note, Ann Cas. 1913C, 658; Sterling v. Pawnee Ditch Extension Co., 42 Colo. 421, 94 P. 339, 15 L. R. A., N. S., 238.)

Since the ditch company acts as trustee and represents all its users, an action of this kind is not properly maintained against the company alone. All other consumers must be made parties. (Farmers' High Line Canal Co. v. White, 32 Colo. 114, 75 P. 415; Brown v. Farmers' High Line Canal & Reservoir Co., 26 Colo. 66, 56 P. 183; O'Neil v. Fort Land Canal Co., 39 Colo. 487, 90 P. 849.)

BUDGE, C. J. Givens, C. J., Morgan, Holden, Wernette and Ailshie, JJ., concurring.

OPINION

BUDGE, C. J.

Some time prior to May 1, 1878, Morris and Rossi constructed a portion of the Ridenbaugh canal system and on May 1, 1878, appropriated 8,500 miner's inches of the waters of Boise River. This water was rented and distributed to users having irrigable lands under the system. Some time prior to May 28, 1883, one S. DeCloedt located upon certain land (now owned by appellants) and filed homestead entry on the same May 28, 1883, made final proof June 2, 1888, and received patent June 27, 1889. Soon after settling on said tract of land DeCloedt began to irrigate the same and raise crops thereon with water rented from the Ridenbaugh canal system, and on August 20, 1888, DeCloedt had the entire 160 acres under cultivation and was renting and using thereon 100 inches of water from the Ridenbaugh canal system. On August 20, 1888, Morris and Rossi initiated an additional water right from the waters of Boise River by location and notice. Thereafter, some time between August 20, 1888, and September 2, 1889, Morris and Rossi conveyed their rights in and to the water rights, theretofore initiated under the above referred to appropriations, and the Ridenbaugh canal system to the Central Canal and Land Company, and this company in 1889 commenced the necessary enlargement of the Ridenbaugh canal system to handle the additional water right initiated August 20, 1888. On September 2, 1889, while the enlargement of the canal system was being made, the Central Canal and Land Company sold and conveyed to S. DeCloedt the perpetual right to the use of two cubic feet of water per second from its system. On May 29, 1890, the Central Canal and Land Company conveyed by deed all its rights and the system to George W. Morrell, this deed of conveyance excepting "those certain water rights heretofore conveyed to . . . . S. DeCloedt." On August 6, 1890, George W. Morrell, by deed, conveyed his rights and the system to the Boise City and Nampa Irrigation Land and Lumber Company, said deed containing the same exception clause, heretofore referred to, with relation to the water right conveyed to S. DeCloedt. On August 20, 1902, the Farmers' Cooperative Ditch Company instituted an action, known as the "Boise River Priority Suit," against numerous appropriators of water from Boise River, including respondent's predecessor in interest, for the purpose of adjudicating the priorities among the several appropriators of the waters of Boise River. On December 1, 1905, the Boise City and Nampa Irrigation Land and Lumber Company conveyed its rights and the system to respondent, the conveyance containing the following clause:

"This conveyance is made subject to all valid outstanding rights to the use of water from canals and water appropriations of said corporation, whether by deed, contract, rental, appropriation, use, or otherwise."

After becoming the owner of Ridenbaugh canal system and the water rights and all other rights connected therewith, respondent was substituted as a defendant in Farmers' Cooperative Ditch Company v. Riverside Irrigation District et al. (the Boise River Priority Suit) in place of the former owner, and in January, 1906, was decreed allotment number 67 for 8,500 inches of water with priority of May 1, 1878, and allotment number 106 for 18,542 inches of water with priority date of August 20, 1888. Appellants are all of the collective owners of the 160 acres of land and the water rights therefor referred to above as belonging to S. DeCloedt, which 160 acres was subdivided into small acreage tracts and thereafter acquired by appellants through mesne conveyances from S. DeCloedt. While appellants' lands receive water from the respondent irrigation system, said lands are not a part of the lands of the irrigation district. Since subdivision of the 160 acres the water rights therefor have been used and operated jointly by appellants for the irrigation of the small acreage tracts making up the whole of the 160 acres. Respondent, a statutory irrigation district, owner of Ridenbaugh canal system, is merely the statutory distributor of the water rights decreed to it and does not hold title to the use of any water it distributes. Respondent distributes water to some 27,000 acres of land entitled to the allotments designated as numbers 67 and 106, which 27,000 acres of land includes the collective 160 acres of appellants' land. Respondent likewise distributes to an additional and considerable acreage of what are known as "project lands."

The Boise River Priority Suit, Farmers' etc. Co. v. Riverside Irr. Dist., was appealed to this court and the decisions therein are reported in 14 Idaho 450, 94 P. 761, and 16 Idaho 525, 102 P. 481. This court affirmed the priorities awarded the various appropriators and reversed the finding and judgment of the lower court to the effect that "bench lands" were to receive one inch per acre and "bottom lands" one and one-tenth inches per acre, and a new trial was ordered for the sole purpose of determining the duty of water. This suit is still pending. The duty of water for various appropriators or various lands has not been fixed or determined permanently. However, since 1915, the trial court, has in the still pending Boise River Priority Suit, from year to year, made an order purportedly "fixing the temporary duty of water for Boise River for the irrigation season of the" particular year involved. These orders substantially recite the same matter as contained in the order of 1919, which is, in part, as follows:

"IT IS HEREBY ORDERED, That from and after the date hereof, until a further order of this Court, all water of Boise River shall be distributed as follows, to-wit: The various rights as adjudicated in the so-called Stewart Decree shall receive 100% until the natural flow of the waters of Boise River shall decrease, until all the rights in said decree can not receive 100%, at which time the various rights adjudicated in the so-called Stewart Decree shall first be cut to 75% of the amount of water decreed by the Stewart Decree as the...