Shelby v. Farmers' Co-Operative Ditch Co.

• Decision Date: 10 March 1905
• Citation: 10 Idaho 723,80 P. 222
• Parties: SHELBY v. FARMERS' CO-OPERATIVE DITCH COMPANY
• Court: Idaho Supreme Court

80 P. 222

10 Idaho 723

SHELBY v. FARMERS' CO-OPERATIVE DITCH COMPANY

Supreme Court of Idaho

March 10, 1905

DITCH COMPANIES-CORPORATIONS OR PERSONS-HOW MAY ENFORCE PAYMENT FOR USE OF WATER.

1. A canal or ditch company, corporation or person owning and operating a canal or ditch in this state, may require the claimants of water from such canal or ditch to pay or secure to be paid in advance before such canal or ditch company corporation or per- son owning or operating such ditch or canal can be required to furnish any water from such ditch or canal to any of the users thereof for any purpose. (Sess. Laws 1899, p. 382, sec. 19.)

2. If such canal or ditch company or person fails to require such payment or security therefor, and does furnish any of the users of the waters of such canal or ditch with water for any purpose, the remedy is by suit at law to enforce such payment and not by rule or regulation refusing to furnish water until such arrearages are paid. (Rev. Stats. 1887, sec. 3203.)

(Syllabus by the court.)

APPEAL from District Court of Canyon County. Honorable George H Stewart, Judge.

Action to restrain respondent from conveying three hundred and twenty inches of water past his headgate to which he alleges title. Judgment for defendant, from which plaintiff appeals. Reversed.

Reversed and remanded, with costs to appellant.

Alfred A. Fraser, for Appellant.

The court erred in finding as a conclusion of law "that it is a reasonable rule and regulation of the company that before turning water out to plaintiff he shall be required to pay the company his proportionate share of the operating and maintaining expenses of the ditch for the previous irrigating season." There was no evidence introduced upon the trial of this case in the court below which can sustain the above finding. There is no evidence introduced that the company ever made such a rule or regulation, and if such a rule or regulation had been regularly adopted by the board of directors of the corporation it would be void, for the reason that such a rule, when adopted by a company, must be general in its application and apply to all persons alike. The company is not at liberty to single out the plaintiff herein and pass a rule or regulation which would apply only in his case. (Owensboro Gas Light Co. v. Hilderbrand, 42 Ky. Law Rep. 983, 42 S.W. 351.) There is no statute in this state granting to water companies the right to adopt any such rule or regulation. The laws governing the distribution and use of water provide the remedy and the manner in which companies engaged in this business must furnish water and collect the rates therefor. (Laws 1899, Fifth Sess., p. 382, sec. 19; Rev. Stats. 1887, sec. 3203.) Even in case where there is a statute providing that a company shall have the right to refuse to deliver water until the past rent due has been paid, it has been held that this rule does not apply when there is a dispute as to the amount which is due said corporation or company for its past services. (Sickles v. Manhattan Gas Light Co., 64 How. Pr. 33; affirmed in 66 How. Pr. 304.) When a dispute arises between the company and a consumer, the latter is entitled to have his right investigated by the courts. In such a case an injunction will be granted to prevent cutting off the supply of gas until the cause is tried. (Wood v. Auburn, 87 Me. 287, 32 A. 906, 29 L. R. A. 376.) The company is not the sole judge of the validity of the bill, and cannot deprive the plaintiff of his right to resort to the courts. (Smith v. Gold & Stock Tel. Co., 42 Hun, 454; Sickles v. Manhattan Gas Light Co., 64 How. Pr. 35; Morey v. Metropolitan Gaslight Co., 6 Jones & S. 185; State ex rel. Webster v. Nebraska Telephone Co., 17 Neb. 126, 52 Am. Rep. 405, 22 N.W. 237; American Water Works Co. v. State ex rel. Walker, 46 Neb. 194, 50 Am. St. Rep. 610, 30 L. R. A. 448, 64 N.W. 711; Shepard v. Milwaukee Gaslight Co., 6 Wis. 539, 70 Am. Dec. 479.) The transfer of the property of the Idaho Irrigating and Colonization Company to the Farmers' Co-operative Ditch Company was absolutely void as against public policy, and gave to the defendant herein no rights whatever in or to said property, or any part thereof, and no right to collect rates from this plaintiff or anyone else for the use of water out of said ditch. A corporation engaged in a public or quasi public business cannot transfer its property or franchises to any other corporation without an express act of the legislature, authorizing such sale or transfer. This proposition is clearly maintained in Thomas v. Railroad Co., 101 U.S. 71, 25 L.Ed. 950. That was the case of a lease of railroad and franchise. The court said, speaking through Mr. Justice Miller: "Where a corporation like a railroad company has granted to it by charter a franchise intended in large measure to be exercised for the public good, the due performance of those functions being the consideration of the public grant, any contract which disables the corporation from performing those functions--which undertakes, without the consent of the state, to transfer to others the rights and powers conferred by the charter, and to relieve the grantees of the burden which it imposes--is a violation of the contract with the state, and is void as against public policy. (Visalia Gas & Electric Light Co. v. Sims et al., 104 Cal. 326, 43 Am. St. Rep. 105, 37 P. 1042; Central Transfer Co. v. Pullman Palace Car Co., 139 U.S. 24, 11 S.Ct. 478, 35 L.Ed. 55; Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 U.S. 1, 9 S.Ct. 409, 32 L.Ed. 839; People v. Chicago Gas Co., 130 Ill. 268, 17 Am. St. Rep. 319, 22 N.E. 798, 8 L. R. A. 497; Gibbs v. Gas Co., 130 U.S. 411, 9 S.Ct. 553, 32 L.Ed. 985.)

Smith & Plowhead, for Respondent.

We ask the court to consider, in the first place, the specifications of error as set forth in appellant's brief, as we contend that under the statutes of this state and the decisions of this court, the findings in this case and the judgment cannot be considered for insufficiency of the evidence to sustain the same, for the reason that appellant has not specified in the transcript or bill of exceptions the particulars in which the evidence is insufficient to sustain said findings. We understand the rule to be that, in order for the appellate court to review the findings or judgment for insufficiency of the evidence to sustain the same, the party specifying such insufficiency must, in his transcript or bill of exceptions, set forth the particulars in which the evidence is insufficient to sustain such findings and judgment. (See Rev. Stats., sec. 4428; O'Connor v. Van Hoy et al., 29 Or. 505, 45 P. 762; Snell v. Payne, 115 Cal. 218, 46 P. 1069; Warren v. Stoddart et al., 6 Idaho 692, 59 P. 540; In re Fath's Estate, 132 Cal. 609, 64 P. 995; Hollister v. State et al., 9 Idaho 8, 71 P. 541.) Can the respondent reasonably refuse said water to said appellant until he has paid his proportionate share of the cost of maintaining and operating said canal for the previous season, or is respondent left to its legal remedy alone to collect unpaid assessments? A water company may make reasonable rules for the government of its customers' supply of water as a penalty for violation thereof, when such rules are embodied in its contract with its consumers, or such contract is made subject to the rules and the customer is furnished with a copy of such rules before violation thereof and before his water was shut off. (Shiras v. Ewing, 48 Kan. 170, 29 P. 320; Tacoma Hotel Co. v. Tacoma Light & Water Co., 3 Wash. 316, 28 Am. St. Rep. 35, 28 P. 51, 14 L. R. A. 669; American Water Works Co. v. State, 46 Neb 194, 50 Am. St. Rep. 618, 64 N.W. 711, 30 L. R. A. 448; Middlesex Water Co. v. Knappman Whiting Co., 64 N.J.L. 240, 81 Am. St. Rep. 467-488, 45 A. 692, 49 L. R. A. 572; Walanga Water Co. v. Wolfe, 99 Tenn. 429, 63 Am. St. Rep. 841, 41 S.W. 1060.) The next question raised is that the Idaho Irrigating and Colonization Company had no right to transfer its property to the respondent company or others. This is also a new question here, and we do not think that this court will consider it as presented, as the appellant has recognized the transfer in his pleadings, is seeking to show that he has rights which this respondent company must recognize, and asks for affirmative relief against this company, without suggesting or in any way objecting to said transfer; he does not show that he is injured in any way, that he is a creditor of the old company, a stockholder, or in any way interested in it. It is a well-established fact that corporations, organized as the evidence shows this company was organized, are private corporations, and in no sense come under the provisions of the rule laid down in the cases cited in appellant's brief. We have examined those cases, and not one is applicable to the facts as disclosed by the evidence in this case. In support of our contention, we beg leave to cite the following authorities: State v. Western Irrigating Canal Co., 40 Kan. 96, 10 Am. St. Rep. 166, 19 P. 349; Miners' Ditch Co. v. Zellerbach, 37 Cal. 543, 99 Am. Dec. 300; Willamette Woolen Mfg. Co. v. Bank of British Columbia, 119 U.S. 191, 7 S.Ct. 187, 30 L.Ed. 384; Holmes & Griggs Mfg. Co. v. Holmes & Wessell Metal Co., 127 N.Y. 252, 24 Am. St. Rep. 448, 27 N.E. 831; Benbow v. Cook, 115 N.C. 324, 44 Am. St. Rep. 454, 20 S.E. 453; Morisette v. Howard, 62 Kan. 463, 63 P. 756.

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, C. J.

This is an appeal from the judgment of the district court of Canyon county. Plaintiff (appellant) filed his complaint alleging that defendant is a corporation incorporated under the laws of Idaho. "That defendant is the successor in interest...