State v. Twin Falls Canal Co.

• Decision Date: 15 June 1911
• Parties: STATE et al., Plaintiffs, v. THE TWIN FALLS CANAL CO., a Corporation, et al., Defendants
• Court: Idaho Supreme Court

121 P. 1039

21 Idaho 410

STATE et al., Plaintiffs, v. THE TWIN FALLS CANAL CO., a Corporation, et al., Defendants

Supreme Court of Idaho

June 15, 1911

CAREY ACT LANDS-SCHOOL LANDS-APPROPRIATION OF WATER RIGHTS-CONSTRUCTION OF CANAL SYSTEM BY CORPORATION-CONTRACT FOR CONSTRUCTION OF IRRIGATION SYSTEM-CONTRACT BETWEEN CONSTRUCTION CORPORATION AND STATE-HOLDING CORPORATION-CONSTRUCTION OF CONTRACT-TRANSFER OF SYSTEM BY CONSTRUCTION CORPORATION TO HOLDING CORPORATION-JURISDICTION-MANDAMUS-LOSS OF WATER BY SEEPAGE AND EVAPORATION-CONSTRUCTION OF STATUTE-WATER RIGHTS-PROPORTIONATE INTEREST-WATER MEASURED AT POINT OF DIVERSION-INTERPRETATION OF CONTRACT-DISTRIBUTION-IN TURN OR BY ROTATION.

(Syllabus by the court.)

1. The Twin Falls Land & Water Co. is a corporation organized under the laws of the state of Utah and authorized to do business in the state of Idaho, its purpose being to acquire water rights and construct irrigation systems and sell water rights in the state of Idaho under what is commonly called the Carey Act, an act of Congress approved February 18, 1894, and acts amendatory thereof, and was organized particularly for the purpose of constructing, operating and disposing of a Carey Act project in this state commonly called the Twin Falls South Side project, and under the provisions of said act of Congress and the statutes of this state, the state land board, on the part of the state, entered into a contract with said Twin Falls Land & Water Company for the construction of a system of irrigation works for the reclamation of the land included in said Twin Falls South Side project.

2. Under the provisions of said contract, the Twin Falls Canal Company was organized under the laws of this state for the purpose and object of taking over and holding the title to said canal system and water rights connected therewith, and to operate and hold the same in trust for the settlers and land owners within said project.

3. Under the terms of said contract the Land & Water Company agreed to sell water for the reclamation of lands owned by the state and embraced within said project.

4. A contract having been entered into between the Land & Water Company and the Canal Company, whereby the Land & Water Company transferred its entire interests in and to the dams ditches, water rights, etc., to the Canal Company, and also thereafter transferred to said Canal Company 42,174.51 shares of unsold water rights, and authorized the latter corporation to sell said shares or water rights under the provisions of the original contract with the state, and said Canal Company upon proper application made by one who had purchased lands of the state embraced within said project, refused to sell the purchaser a water right for the irrigation of the lands so purchased; held, under said contract and the law that the Canal Company should be compelled by mandate to issue to such purchaser the water rights prayed for.

5. The canal corporation was not organized for profit, but was organized for the purpose of carrying out the provisions of said contract and to perform a public duty, and in case of refusal to perform such duty, held, that mandamus would lie to compel it to do so.

6. Sections 1615, 1616, 1617, 1618 and 1619, Rev. Codes, cited and construed.

7. It is the policy of the law of this state to prevent the wasting of water.

8. In the construction of a written contract, if there is room for doubt as to its true meaning, the facts and circumstances out of which such contract arose should be considered and the contract construed in the light of such facts and circumstances, so that the intention of the parties to the contract may be ascertained, if possible, and given effect.

9. Certain provisions of said contract cited, commented on and construed.

10. Said contract prohibits water rights or shares to be dedicated to any of the lands included within such project or sold for any lands beyond the carrying capacity of the canal and in excess of the appropriation of 3,000 second-feet of water, and prohibits the sale of more than one second-foot of water for the irrigation of each eighty-acre tract, and contemplates that said appropriation of water shall be devoted exclusively to the irrigation of lands within said project.

11. Under the provisions of paragraph 9 of said contract, it is provided that one-eightieth of a second-foot is allotted to each acre of land within said project, and the carrying capacity in said canal system sufficient to carry that amount of water for each acre, and a system of distribution by rotation is provided. Held, that that system should be used if necessity and the economical use of water requires it.

12. Under the provisions of sec. 3293, Rev. Codes, the users of water are prohibited from using more than good husbandry requires for the proper production of the crop or crops they produce.

13. Although there is no statutory provision for rotation in the use of water, contracts providing for rotation will be enforced by the courts.

14. Under the provisions of said contract, each owner of land is not entitled to a constant flow of one-eightieth of a second-foot of water per acre.

Original application for a writ of mandate to compel the defendants to issue shares of water stock, the water to be used for the irrigation of certain lands purchased by the plaintiff West from the state, and for other proper and equitable relief. Application granted and writ of mandate directed to be issued.

Writ of mandate issued. Costs of this proceeding awarded to the plaintiffs. Petition for rehearing granted.

D. C McDougall, Attorney General, J. H. Peterson, and O. M. Van Duyn, Assistants, for Plaintiffs.

Action in mandate will lie to compel the defendant corporation to issue shares of stock to the plaintiff in accordance with its dedication, its application filed with the state engineer, contract with the state and the right which under our statutes a land owner has to demand the irrigation of his land from the available water supply upon the payment of a reasonable compensation therefor. (Sec. 4977, Rev. Codes; 26 Cyc. 378; Haugen v. Albina Light & Water Co., 21 Ore. 411, 28 P. 244, 14 L. R. A. 424; Merrill v. South Side Irr. Co., 112 Cal. 426, 44 P. 720; Cozzens v. North Fork Ditch Co., 2 Cal.App. 404, 84 P. 342; Standard v. Farmers' High Line etc. Co., 25 Colo. 202, 54 P. 626; Wheeler v. Northern Colo. Irr. Co., 10 Colo. 582, 3 Am. St. 603, 17 P. 487; Golden Canal v. Bright, 8 Colo. 144, 6 P. 142; McCrary v. Beaudry, 67 Cal. 120, 7 P. 264.)

Where the right rests upon a public duty of the company, its enforcement may be compelled by mandamus. (Perrine v. San Jacinto etc. Co., 4 Cal.App. 376, 88 P. 293; Hunt v. Jones, 149 Cal. 300, 86 P. 686; Clyne v. Benicia Water Co., 100 Cal. 310, 34 P. 714.)

S. H. Hays, Appearing Amicus Curiae.

The procedure by writ of mandate is proper, for the reason that the Twin Falls Canal Co. is not a corporation organized for profit, but simply for the purpose of administering the water supply and managing and maintaining the canal system constructed by the Twin Falls Land & Water Co. The officers and directors of this corporation occupy exactly the same relation to the public as the officers and directors of an irrigation district. While organized as a private corporation, the duties and functions are those of a public corporation exclusively. (19 Am. & Eng. Ency. of Law, 2d ed., 883; 5 Thompson, Corporations, sec. 5775.)

By paragraph 9 of the contract, one-eightieth of a second-foot of water is allowed to each acre, but that allotment, as shown by the original appropriation, is measured at the point of diversion. Such water, however, as is to be delivered to the user is to be delivered at a point within one-half mile of the place of intended use, but only in such quantities as may be needed and under a rotation system. The rotation system is herein specifically provided for by contract, but if it were not and the water supply was short, it would be the duty of the company to provide such system as a necessary economy in distributing the water. This method has been recognized by the courts. (Wiggins v. Muscupiabe L. & W. Co., 113 Cal. 182 (190), 54 Am. St. 337, 45 P. 160, 32 L. R. A. 667; Gutierrez v. Wege, 145 Cal. 730, 79 P. 449.)

The advantage of a rotation system was long ago recognized by this court. (Helphery v. Perrault, 12 Idaho 451, 86 P. 417.)

In order that there might be no doubt about the obligation, the system to be used under this project was in specific terms defined as a rotation system. Since the decision in the Helphery case, the courts and law-writers have recognized the necessity of rotation. (Wiel, Water Rights in Western States, p. 268; Mills' Irrigation Manual, sec. 87; Shafford v. White Bluffs L. & I. Co., 63 Wash. 10, 114 P. 883; Anderson v. Bassman, 140 F. 14 (29); Hough v. Porter, 51 Ore. 318, 95 P. 732 (752), 98 P. 1083, 102 P. 728.)

The rotation system is approved by the highest engineering authority. (Buckley, "The Irrigation Works of India," p. 282; Brown on Irrigation, p. 214 et seq.; Wilson's Irrigation Engineering, sec. 67.)

W. H. Puckett, and J. B. Hawley, Amici Curiae.

The company which was directly concerned in this contract had the opportunity for making it or assisting in its drafting, and we can safely presume that it had a part in writing it; it is certain that the settler had none. It seems that there is much reason for insisting that a contract be more strongly interpreted against the party who has written it than against one who has had no part in its formation. (Page on Contracts, p. 1122; 2 Parsons on Contracts, 9th ed., pp. 662, 663, and notes; 9 Cyc. 591.)

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