Vinyard v. North Side Canal Co., Ltd.

• Decision Date: 04 February 1929
• Docket Number: 5012
• Citation: 47 Idaho 272,274 P. 1069
• Parties: CHARLES VINYARD et al., Appellants, v. NORTH SIDE CANAL COMPANY, LIMITED, a Corporation, et al., Respondents
• Court: Idaho Supreme Court

274 P. 1069

47 Idaho 272

CHARLES VINYARD et al., Appellants, v. NORTH SIDE CANAL COMPANY, LIMITED, a Corporation, et al., Respondents

No. 5012

Supreme Court of Idaho

February 4, 1929

WATERS AND WATERCOURSES-CAREY ACT-SUBSEQUENT FINDINGS OF LAND BOARD-RIGHTS OF SETTLERS-CONTRACT-INTENT OF PARTIES-SPECIFIC FINDINGS-LAW OF THE CASE.

1. If facts show that no finding conflicting with trial court's conclusion could have been made, judgment will not be reversed for failure to make specific finding.

2. Ruling of supreme court on former appeal constitutes "law of case" on subsequent retrial and appeal.

3. Rights of settlers under Carey Act contract could not be changed by findings of fact of the land board appended to subsequent supplemental contract between state and Carey Act construction company.

4. Where original contracts of settlers with Carey Act construction company, giving them, respectively, 1/80 and 1/100 cubic feet per second of water to be supplied under contract between state and construction company from certain reservoirs, could not be carried out, supplemental contract between state and company, requiring company in lieu thereof to procure water in excess of 170,000 acre-feet to be stored elsewhere, and reciting that it was not intended to change existing contractual relations of parties so far as water supply to which settlers were entitled was concerned, held not intended to limit water available to settlers to 170,000 acre-feet, but to give settlers full water rights under their original contracts.

APPEAL from the District Court of the Eleventh Judicial District for Jerome County. Hon. T. Bailey Lee, Judge.

Action to determine amount of water, if any, available for appellants and others similarly situated. Judgment for defendants. Affirmed as modified.

Judgment affirmed. No costs allowed on this appeal. Petition for rehearing denied.

J. B Eldridge, for Appellants.

The court should have made findings of facts as to the quantity of water required to fill the outstanding contracts conceded by appellant Vinyard to be prior; and should have made findings of facts as to the quantity of water which the court himself found, or should have found, to be prior to the rights of plaintiffs and their classes. (See the remittitur of this court.) (Berlin Machine Works v. Dehlbom Lumber Co., 29 Idaho 494, 160 P. 746; Reno v Richards, 32 Idaho 1, 178 P. 81; Goodell v. Pope-Shenon Mining Co., 36 Idaho 427, 212 P. 342; Jensen v. Bumgarner, 25 Idaho 355, 137 P. 529; Storey & Fawcett v. Nampa & Meridian Irr. Dist., 32 Idaho 713, 187 P. 946; Tage v. Alberts, 2 Idaho 249, 13 P. 19; Standley v. Flint, 10 Idaho 629, 79 P. 815; Carson v. Thews, 2 Idaho 176, 9 P. 605; Bowman v. Ayers, 2 Idaho 305, 13 P. 346; Wood v. Broderson, 12 Idaho 198, 85 P. 490; Koon v. Empey, 40 Idaho 6, 231 P. 1097.)

The court should have made findings upon the issues involved and as requested by the plaintiffs, and not mere conclusions of law. (Cases heretofore cited; Fehr v. Haworth, 33 Idaho 96, 190 P. 248; 38 Cyc. 1978, 1979; Adams-Campbell Co. v. Jones, 71 Cal.App. 723, 236 P. 322.)

A. B. Barclay and Walters, Parry & Thoman, for Respondents, cite no authorities on points decided.

GIVENS, J. Budge, C. J., Wm. E. Lee, J., and Hartson, D. J., concur, Taylor, J., concurs in the result.

OPINION

GIVENS, J.

A history of this case and the issues are set forth in Vinyard v. North Side Canal Co., 38 Idaho 73, 223 P. 1072, wherein the court reversed and remanded the case for the trial court to find whether there was any surplus storage water, holding that if there was, appellant and his class would be entitled to their pro rata share.

The principal point in the appeal herein is that the trial court, instead of making specific findings on the question of surplus, set forth a conclusion that there was no surplus. A specific finding should have been made but since it was not, if the facts show that no finding conflicting with the conclusion reached could have been made, the action will not be reversed. (Tage v. Alberts, 2 Idaho 271, 13 P. 19; Wood v. Broderson, 12 Idaho 190, 85 P. 490; Berlin Machine Works v. Dehlbom Lumber Co., 29 Idaho 494, 160 P. 746; Storey & Fawcett v. Nampa & Meridian Irrigation District, 32 Idaho 713, 187 P. 946; Basinger v. Taylor, 36 Idaho 591, 211 P. 1085; Pleasants v. Henry, 36 Idaho 728, 213 P. 565; Erickson v. Winegar, 41 Idaho 1, 236 P. 870.)

The original contracts of the settlers of the second and third segregations with the Carey Act construction company gave them respectively 1/80th and 1/100th of a cubic foot per second to be supplied under the terms of the contract between the state and the construction company in part from the natural flow of Snake River and in part from storage in the Jerome and Wilson reservoirs, measured within one-half mile of their respective lands. (Collins v. Twin Falls Co., 28 Idaho 1, 152 P. 200; Ricker v. Twin Falls Co., 39 Idaho 93, 226 P. 167.)

When it was found and determined from the attempted actual operation thereof that the Jerome and Wilson reservoirs would not hold water, a supplemental contract was made March 27, 1913, between the state and the construction company providing that the company should acquire storage rights in the Jackson Lake reservoir to take the place of the storage in the Jerome and Wilson reservoirs until such time, if any, within certain time limits, that they could be made serviceable.

The part of this supplemental contract of March 27, between the state and the company, which is material is as follows:

"That the company shall procure to be stored at the Jackson Lake Reservoir in the State of Wyoming or elsewhere, at the option of the second party, an amount of water in excess of 170,000 acre feet in accordance with the resolutions of the Land Board adopted December 27, 1912, it being understood that the said party of the second part may procure such storage to be provided by the government of the United States, or by some other person or corporation, it being understood that if water is procured from Jackson Lake or some other Government Reservoir, that it will be subject to terms and conditions of the Act of Congress commonly known as the Warren Act [43 U.S.C. A., secs. 523-525], and other laws relating thereto.

"2. That water stored at Jackson Lake Reservoir, or such other reservoir as may be provided under the terms hereof, may be used on the lands under the irrigation canals of the Twin Falls North Side Land and Water Company in Lincoln and Elmore counties, State of Idaho, in lieu of water stored in Wilson Lake or Jerome Reservoirs, and the said party of the second part is authorized and empowered to procure such storage elsewhere than at the last named reservoirs.

"3. That waters stored at Jackson Lake or elsewhere shall be delivered proportionately until final dedication authorized in paragraph seven hereof at the intake of Wilson Lake and Jerome reservoirs, the amount so furnished at such points, together with the amounts that may be stored in said Jerome and Wilson Lake reservoirs, shall equal the amount for each acre sold under the reservoir system which said reservoirs were originally designed to hold for each acre originally under said system, State lands and private lands within the general limits of any segregation to be included herein and to be considered as a part of the project as of the date of the segregation within the general limits of which they are included. It is the intent hereof not to change the existing contractual relations of the parties so far as the water supply to which the settlers are entitled is concerned, it being the purpose only to provide for the storage of water elsewhere so far as the same may be necessary and to provide the proper proportionate amount of water in accordance with the terms of the contracts by the parties of the second part with the State and with the settlers for each acre of land to be delivered at Wilson Lake and Jerome Reservoirs in proportion to the capacity of said reservoirs as originally planned; that is to say, as if fifteen-seventeenths of said water was stored at Jerome and two-seventeenths at Wilson Lake reservoirs.

* * * *

"8. It is anticipated that the said party of the second part will procure more water to be impounded at Jackson Lake than is called for by the terms of this agreement and any additional water so impounded may be used for the irrigation of other lands, or for other purposes."

Appellants contend that by this contract only 170,000 acre-feet measured at the intake of the Jerome and Wilson reservoirs were given to the settlers on the second and third segregations. Respondents take the position that sufficient storage within the total amount secured, namely, 312,007 acre-feet (that is, above elevation 6752 in the Jackson Lake reservoir, the only amount in controversy) sufficient to fill the settlers' rights of 1/80th and 1/100th acre-feet was intended to be so supplied. Respondents further contend that appellants and their class are entitled, and the court so found, to none of the surplus, if any, from this storage. The previous opinion decided otherwise (Vinyard v. North Side Canal Co., supra) and such is therefore the law of this case (Hall v. Blackman, 9 Idaho 555, 75 P. 608; Steve v. Bonners Ferry Lumber Co., 13 Idaho 384, 92 P. 363; Gerber v. Nampa etc. District, 19 Idaho 765, 116 P. 104; Nampa v. Nampa etc. District, 23 Idaho 422, 131 P. 8; Williams v. Sherman, 36 Idaho 494, 212 P. 971), and the portion of the findings, conclusions and judgment entered thereon by the trial court is erroneous.

The decisive question is what amount of this...