Walden v. Bitter Root Irr. Dist.
| Decision Date | 13 July 1923 |
| Docket Number | 5332. |
| Citation | 217 P. 646,68 Mont. 281 |
| Parties | WALDEN v. BITTER ROOT IRR. DIST. ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Ravalli County; James M. Self, Judge.
Suit by G. N. Walden against the Bitter Root Irrigation District and others, constituting the Board of Commissioners, to enjoin the sale of bonds. From an order sustaining a demurrer to the complaint and from a judgment for defendants, plaintiff appeals. Affirmed.
H. C Packer, of Hamilton, for appellant.
O'Hara Madeen & Carmody, of Hamilton, and T. B. Weir, A. W O'Rourke, Hugh T. Carter, William Scallon, and J. R. Wine, all of Helena, for respondents.
This action was brought by the plaintiff, a resident of Ravalli county and a landowner within the Bitter Root irrigation district in behalf of himself and all others similarly situated to enjoin the sale of $1,140,000 worth of coupon bonds of the district, $145,000 of which have been advertised for sale and will be sold unless injunction issue. Demurrer to the complaint was sustained, and judgment entered for defendants. Plaintiff appeals.
To avoid prolixity it may be said that the controversy is divided into three parts, presenting the following questions: (1) Whether the court's order establishing the district is void for failure to give accurate descriptions of the lands included within the district as required by section 7169, R. C. 1921; (2) whether the statute imposing a tax upon the entire acreage of each tract, based upon the proportion thereof to be irrigated, is constitutional; (3) whether the bonds proposed to be issued are in conformity with the law.
Two minor questions will be mentioned later.
1. The court made its order establishing the district on December 9, 1920. It then included 13,202 acres. Upon proper petition presented, the court on July 7, 1921, made on order annexing 6,991.20 acres to the district, and on June 24, 1922, the court, upon petition, made another order annexing 681 acres thereto. So far as this record discloses, neither the plaintiff nor any one else interested in this controversy appealed from either of these orders. Plaintiff's action, therefore, is in the nature of a collateral attack, and unless the order creating the district is void upon its face by reason of uncertainty in description the plaintiff must fail upon that score. O'Neill v. Yellowstone Irrigation District, 44 Mont. 492, 121 P. 283.
In the first order this appears:
"That the lands included in the original petition, less a deduction of 7 1/2 per cent., agreed to be not benefited by irrigation, shall be included in the district."
By reason of this language it is urged that uncertainty is cast into the order; but, in view of what precedes and follows the quoted language, this sentence is ineffectual for any purpose and must be disregarded as meaningless.
After making the necessary findings and allowing the petition, the court ordered:
"That the irrigation district known as the Bitter Root irrigation district be and the same is hereby established; that the lands contained and included within said district and which will be benefited by irrigation by means of said system are described as follows, to wit. * * *"
The descriptions embraced in the order consist of a large number of parcels of land. Some are parts of Hamilton Heights, Summerdale Orchards, Mountain View Orchards, and the like, and are referred to by lot and block "according to the official plat thereof on file and of record in the office of the county clerk" of the county; other lands are described by metes and bounds, and others by legal subdivisions, 40 acres or less. Each and all of the descriptions are sufficient to identify the particular tract of land involved; indeed, thus far the descriptions are accurate. But following the description of each lot or parcel there is additional matter, the whole being in tabulated form. For instance:
Lot. Block. Gross Area. Area Included.
3 1 14.82 11.80
4 1 14.80 12.40
Others appear thus: After setting forth "that part of the northeast quarter of the northeast quarter lying under canal" (section, etc., given later in description), there appears under "Gross Area" the figures "15.40", and under "Area Included" the figures "15.40." In other words, in one case the "Gross Area" is the same as the "Area Included;" in another, "Area Included" is less than "Gross Area." As illustrative of the probable meaning of the phrase "Gross Area" and "Area Included" we find in the second order descriptions of lots and parcels tabulated substantially as are those in the first order, but the phrases are "Gross Acres" and "Irrig. Acres."
An analysis of all the things done, as shown by this record, leads to the conclusion that "Area Included" must have been intended to mean "Area Irrigable," or else it does not mean anything. But if it means that it serves no useful purpose. The court did not have any authority to fix the amount of the irrigable area in the respective tracts in the original order, which was made under the provisions of section 2 of chapter 116 of the Session Laws of 1919, now section 7169, R. C. 1921. Under the provisions of that section, which has to do with the hearing on the petition, the court, if it finds that the statutory requirements have been met up to that time, shall make and enter an order: Setting forth its finding and allowing the petition; establishing the proposed district; giving accurate descriptions of the lands included within the proposed district; dividing the proposed district into three, five, or seven divisions, as may be advisable in view of the size of the district; appointing as commissioners one competent person for each division of the district; "such finding and order shall be conclusive upon all the owners of lands within the district that they have assented to and accepted the provisions of this act; and shall be final unless appealed from to the Supreme Court within 60 days from the day of entry of such order."
It is provided in the fore part of the section that:
"The court may make such changes in the proposed district as may be deemed advisable, or as fact, right and justice may require; but shall not exclude from such proposed district any land which is susceptible of irrigation from the same general source, and by the same general system of works applicable to the other lands of such proposed district, if the owner or owners of such lands shall file in such district court a written request that such lands be included in such district; nor shall any lands which will not, in the judgment of the court, be benefited by irrigation by means of said system of works, nor shall lands already under irrigation, nor lands having water rights appurtenant thereto, nor lands that can be irrigated from sources more feasible than the district system, be included within such proposed district, unless the owner of such lands shall consent in writing to the inclusion of such lands in the proposed district, as hereinafter provided, and to this end the court may subdivide lands included within the petition or proposed at the hearing to be included within such district into forty-acre tracts or smaller subdivisions thereof. * * *"
It is plain that when the parcels of land have been reduced into 40-acre tracts or smaller subdivisions thereof, or are already in the form of lots, being parts of blocks (less than 40 acres), the statute does not contemplate that the court may scale them still further by arbitrarily excluding portions thereof. But it is fair to say that no such attempt appears to have been made by the court. A critical examination of the order discloses beyond a doubt that the court intended to and did include within the district all of the lots and parcels of land described. It was unnecessary to have made any mention of the gross area, because, as is above adverted to, the descriptions were sufficient without stating the acreage included within each. To be sure, mention of the acreage is permissible by inference drawn from the language of section 7190, R. C. 1921.
The amount of irrigable areas in the respective tracts is fixed by the commissioners by authority of section 7235, R. C....
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