State v. The Western Irrigating Canal Company

• Decision Date: 01 July 1888
• Citation: 19 P. 349,40 Kan. 96
• Parties: THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. THE WESTERN IRRIGATING CANAL COMPANY
• Court: Kansas Supreme Court

19 P. 349

40 Kan. 96

THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. THE WESTERN IRRIGATING CANAL COMPANY

Supreme Court of Kansas

July 1, 1888

Original Proceedings in Quo Warranto.

ON May 16, 1887, The State of Kansas, upon the relation of Hon. S B. Bradford, the attorney general, filed its petition in this court against The Western Irrigating Canal Company, praying that the company be required to show by what authority it holds, possesses, and assumes to exercise the powers privileges, and franchises granted to the Enterprise Irrigating Company; and that the plaintiff have judgment of ouster against the defendant in the further exercise of such powers, privileges and franchises; and that the company be declared by the judgment of this court to be incapable of exercising the same. On July 1, 1887, the defendant filed its answer, alleging:

"That the supreme court of the state of Kansas ought not to take jurisdiction in this case, for the reason that no public question is involved therein; that this suit was instituted at the request and suggestion of the attorneys of one A. T Soule, who is the principal owner of the Eureka Union and so-called Low-line irrigating canals; that the canals of this defendant and of the said A. T. Soule come into competition with each other, and the said A. T. Soule is attempting to monopolize the entire irrigating business of Ford county, and as a part of his said design to monopolize the irrigating business as aforesaid, he is endeavoring by all means in his power to obstruct, hinder and delay this defendant in the construction of its canal; that in order to protect its rights, the defendant, prior to the institution of this suit brought a suit in the district court of Ford county, against the Low-line Canal Company, one of the companies above named, which is now pending and undetermined; that it was upon the representation and statements of the said Soule and his attorneys that the attorney general was induced to bring this suit, and the institution thereof is one of the means used by the said A. T. Soule to hinder, delay, annoy and oppress this defendant; and that the matters involved in this suit are solely matters of private interest between this defendant and the said A. T. Soule, and not of a public nature. Defendant therefore asks the supreme court to dismiss said suit.

"Further answering, the defendant denies that it has assumed or pretended as of right to possess or use, pursuant to a purchase, the franchise of the Enterprise Irrigating Company; denies that it is now unlawfully exercising or in any manner using the powers, privileges or franchises of the said Enterprise Irrigating Company; denies that it has attempted, by purchase or otherwise, to succeed to the franchises authorized by law to be exercised by the said Enterprise Irrigating Company; denies that it is usurping, intruding into, or is unlawfully holding or exercising any franchise whatever.

"And further answering, defendant says: It has no knowledge or information of the existence of a corporation named the Enterprise Irrigating Company, or that any such company ever existed in the state of Kansas, or at any other place."

Trial had at the June sitting of the court for 1888. At the time of the hearing, the following stipulation was filed by the parties, omitting court and title:

"It is hereby stipulated and agreed between the plaintiff and defendant herein, that after the incorporation of the Enterprise Irrigating Company, defendant, said company proceeded to acquire a right-of-way for its irrigating ditch or canal, along the route indicated upon its profile and map which was made and filed, as in such cases provided by law, and that said company procured such right-of-way for nearly or quite the proposed entire length of its said canal; that the route of said canal lay mostly along and across the public unoccupied lands of the United States, and that the right-of-way over the same was acquired by said company, (with the exception of a few pieces purchased,) under and by virtue of the laws of the United States and the rules and regulations of the commissioner of the central land office, enacted and established for the purpose of conferring a right-of-way over the public lands for such irrigating canals or ditches; and that said Enterprise Company had so acquired its right-of-way over the public domain and across certain part of entered lands for the entire length of the proposed ditch, to wit, about 24 miles, prior to the execution of its deed attempting to convey its right-of-way, etc., to the Western Irrigating Canal Company.

"And it is further stipulated and agreed, that the route, line and profile of the Western Irrigating Canal Company is practically the same as that laid out and proposed by the said Enterprise Irrigating Company, and which is attempted to be conveyed by the said Enterprise Company by said deed to the Western Irrigating Company.

"It is further agreed that, after the execution of the deed herein referred to, the Western Irrigating Canal Company took possession of the property and right-of-way of the Enterprise Company, and commenced work; and that...