Seaman v. Big Horn Canal Association

• Decision Date: 02 April 1923
• Docket Number: 1020
• Citation: 213 P. 938,29 Wyo. 391
• Parties: SEAMAN v. BIG HORN CANAL ASSOCIATION
• Court: Wyoming Supreme Court

213 P. 938

29 Wyo. 391

SEAMAN v. BIG HORN CANAL ASSOCIATION

No. 1020

Supreme Court of Wyoming

April 2, 1923

APPEAL from the District Court, Big Horn County; HON. P. W. METZ Judge.

Action by Gilmore Hartigan against Big Horn Canal Association, a corporation, to enjoin an assessment for the maintenance and repair of its canal for the year 1915. There was a judgment for plaintiff and defendant appeals. Upon the death of plaintiff John Seaman, his administrator, was substituted as appellee.

Affirmed.

Brome &amp Hyde, for appellant.

The question involved is the power of the assistant secretary of the company to discharge a lien for an assessment made upon plaintiff's land by reason of an erroneous statement made to a prospective purchaser of the land. Defendant is a quasi public corporation without capital, organized on a mutual plan to supply water to its stockholders only, and not for profit. Its only members are holders of land lying under its canal, which lands are irrigated therefrom. Its only purpose is to maintain the canal, control its operations and distribute water. The company is not liable for acts or representations of its officers outside the scope of their authority. Its assessments are levied in accordance with Section 679 C. S. 1910. The office of assistant secretary was created and his duties defined by the by-laws. The land was subject to assessment for maintenance charges and the assistant secretary was without power or authority, to disclaim or relieve lands from such assessment. Neither the company nor its officers were obliged to give information to third persons, or non-members, with respect to its assessments and erroneous information thus given could not discharge existing liens for water charges more than a county treasurer could, by erroneous information, discharge land from a tax lien. The treasurer might be liable but the county could enforce a lien for the unpaid taxes. (Lyman v Edgerton, 29 Vt. 305.) The case cited involved the neglect of a clerk to index a mortgage, whereby a purchaser was misled, and made to believe, that no mortgage lien existed against land he was about to purchase. A private corporation cannot be held liable for a tort or wrong committed by one of its officers, outside the scope of duties devolved upon such officer or agent by the corporation. (Fletcher Cyc. Corp., Vol. 3, Ch. 42, Sec. 2071; Cook on Corporations, 7th Ed. Vol. 3, Sec. 717; Clark etc. on Corporations, Vol. 3, Sec. 704, p. 2150.) In this case the assistant secretary had no authority to give information to third persons, respecting the acts of the company, and thus bind the company even though liability might be incurred by the assistant secretary, individually.

The decree of the District Court should be reversed.

H. W. Rich, for respondent, filed no brief.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

The action herein is one for an injunction brought in the District Court of Big Horn County, by G. Hartigan, as plaintiff, against the Big Horn Canal Association as defendant.

The defendant and appellant herein, is a corporation, organized in 1911 under the general incorporation laws of this state, for the purpose of owning and operating an irrigation system which supplies water, for irrigation, to land lying under its canal. The land is taken up and acquired under what is commonly known as the Carey Land Act, and the south one-half of Lot 69, T. 51 N. R. 93, in question here, is a part thereof. The corporation seems to have been organized by the various holders of the land lying under its canal; it has no capital stock, does not exist for direct gain, and is authorized to issue shares or certificates of membership, each representing a proportionate interest in the irrigation works and in appropriations of water for the land. The by-laws of the corporation provide for an assistant secretary, as follows:

"The directors shall elect an assistant secretary who shall be employed at a monthly salary, who shall have charge of the office of the company, keep stock records, books of account, take charge of all office business, act as secretary at directors and stockholders meetings and keep full and accurate minutes of the same. Draw vouchers for treasurers signature, collect and receipt for assessments and moneys due and turn such moneys with an accurate account thereof over to the treasurer the first of each month or as often as $ 500 is on hand. He shall furnish detailed statements to the directors of the Company's financial condition, the first of each month and shall do all the duties usually done by the Secretary unless otherwise provided by these by-laws."

To carry out this by-law an assistant secretary was duly elected and acting during the time herein mentioned. Section 792 of the Wyo. Comp. Stat. 1920 gives authority to the corporation to levy and collect assessments for the maintenance of its irrigation system against the various shareholders, making them a lien on the lands for which the water is furnished, and authorizing the withholding of water until paid. Pursuant to this power the corporation on November 8, 1915, levied an assessment for the maintenance and repair of its canal for that year. $ 78.69 was the amount levied against the land in question here. This was not paid and the defendant, accordingly, in the spring of 1919, refused to deliver any water for the land of plaintiff.

Plaintiff's testimony tends to show the following additional facts: The land in question was owned in the month of September, 1916, by one Washburn. The plaintiff desired to buy it, entered into negotiation with Washburn, arrived at an understanding with him as to the price, and it was agreed between them that all delinquent taxes and assessments against the land should be deducted from the purchase price. Then, in order to become advised, plaintiff, in September, 1916, called on the assistant secretary of said corporation, informed him of his intended purchase mentioned, and asked to be advised as to the status of the assessments made by the corporation against the land in question. In response, plaintiff was told in effect that the assessment against said land for the year 1915 had been paid. He then bought the land, did not, however, make final payment to Washburn until February, 1917, and before doing so, he again called on said assistant secretary to assure himself of the correctness of the information previously received, and being advised to the same effect as before, and relying thereon, he thereafter paid to Washburn the balance due on the purchase price, without deducting the amount of the assessment mentioned. There is some evidence in the record tending to show that the assistant secretary for a number of years prior to 1916 was the person, and the only one, to whom interested parties went, or could go, for the purpose of information in regard to assessments made by the said corporation against lands under its canal. The plaintiff claimed in his petition that the said corporation should, by reason of the statements and assurances of the assistant secretary made as above mentioned, be held to be estopped from asserting or enforcing the lien claimed by it against the land in question, and he asked that it be enjoined from shutting off the water from his land by reason of such claim. The defendant corporation denied the claim of plaintiff and adduced evidence in support thereof. The court found for plaintiff, held the defendant corporation estopped from claiming or enforcing said lien, enjoined it as asked for in the petition, and entered judgment accordingly. From this judgment defendant appeals. For the purposes of review in this court, accordingly, we must take the testimony tending to sustain the plaintiff's claim as true. The plaintiff Hartigan having died, John Seaman, administrator of his estate, has been substituted as appellee herein.

The position taken by counsel for defendant and appellant is to the effect that the appellant is a quasi public corporation, not organized for any direct profit; that as such it cannot be held estopped on account of the representations made by its assistant secretary; that the giving of the information by him did not involve the performance of any duty; that said corporation is not organized for the purpose, and is not authorized or required, to give any information to third parties not interested in the corporation, as to the status of any liens or assessments against lands under its canal, and hence the giving of said information by said assistant secretary could not be and was not the act of the corporation itself. Judging from some authorities cited, the claim is also apparently made that an assistant secretary is an officer of such limited authority as not to be able to bind a corporation. We need, however, only say on that point that the name by which an officer is designated is not at all necessarily determinative of his authority. In the case at bar the assistant secretary not alone kept the books of the company, collected and receipted for all assessments, but he had full charge and control of its office. As stated by one witness, he was the "all around boss;" he apparently had all the powers of a general manager, and it is clear that if the defendant corporation could be estopped by misrepresentations of any of its officers, it clearly could be so through those of the assistant secretary here.

Counsel seems to lay stress on the fact that the appellant is a quasi public corporation, and hence exempt from the general rule. It is true that ditch companies furnishing water for irrigation to the public generally have been designated as quasi public. (40 Cyc. 825.) On the other hand it has been stated that...