Wells v. Price

• Citation: 56 P. 266,6 Idaho 490
• Parties: WELLS v. PRICE
• Decision Date: 14 February 1899
• Court: United States State Supreme Court of Idaho

56 P. 266

6 Idaho 490

WELLS v. PRICE

Supreme Court of Idaho

February 14, 1899

SHARES OF STOCK IN CORPORATION-ATTACHMENT-EXECUTION.-Shares of stock in a corporation can only be subjected to a debt by seizure under attachment or execution in the manner prescribed by the statutes relating to such seizure.

SAME-SHARES OF STOCK IN IRRIGATION CORPORATION NOT APPURTENANT TO LAND.-Shares of stock owned by the execution defendant in an irrigation corporation are not appurtenant to the lands owned by such execution defendant although he irrigates such lands with water from a canal owned by such corporation.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Demurrer sustained. Judgment affirmed, with costs to the respondents.

T. L Glenn, for Appellant.

The sole and only question is, Can the lands of the plaintiff the successor in interest of Francis Wilcox, be deprived without his consent or the consent of his predecessor in interest, of the waters which had been regularly appropriated to them and uninterruptedly used upon them for a period of at least fourteen years? If it is real property, then the levy of the attachment issued in the action of Deere, Wells & Co. in October, 1891, seized the water rights of Francis Wilcox equally with the land, and the sheriff's deed executed in May, 1896, by relation, conveyed it to the plaintiff. (Sharp v. Baird, 43 Cal. 577; Porter v. Pico, 55 Cal. 165.) Section 2825 of the Revised Statutes of Idaho defines real property as follows: "Real property or real estate consists of lands, possessory rights to land, ditch and water rights, and mining claims both lode and placer." This question is original. There is not only a paucity of decision upon it; there is absolutely none at all. It involves simply a construction of section 4, article 15 of our constitution.

John A. Bagley, for Respondents.

What interest has a stockholder in the corporate property? How may it be attached? As to the first question, the corporation owns the property in the case at bar; the Upper South Field Irrigation Company owned the water. Wilcox had no title to it. (Gorman v. Gilson, 28 Cal. 479; Gashwiler v. Willis, 33 Cal. 11; Mickles v. Rochester City Bank, 11 Paige, 128, 43 Am. Dec. 103, and note; Wheelock v. Multon, 15 Vt. 521; Wright v. Oroville, 40 Cal. 20.) The property of a corporation is owned by the corporation, and not by the individual members. (Button v. Hoffman, 61 Wis. 20, 50 Am. Rep. 131, 20 N.W. 667, and cases cited; Baldwin v. Canfield, 26 Minn. 43, 1 N.W. 261; Bank v. Railroad Co., 13 N.Y. 599; Brewster v. Hartley, 37 Cal. 15, 30, 99 Am. Dec. 237; Clark on Corporations, 257; Fisher v. Bank 5 Gray (Mass.), 373, 377; Burrall v. Railroad Co., 75 N.Y. 211, 216.) The fact that Wilcox and others appropriated these waters and used them upon their lands before the corporation was incorporated does not support plaintiff's contention. Before incorporation, the water appropriated by Wilcox and used upon his land was separate and distinct from the land--that is, he could sell the land and retain the water, or he could sell the water and retain the land. (Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 P. 854; Frank v. Hicks, 4 Wyo. 502, 35 P. 475, 1025; Bloom v. West, 3 Colo. App. 212, 32 P. 846; Strickler v. City, 16 Colo. 61, 25 Am. St. Rep. 245, 26 P. 313; Pomeroy's Riparian Rights, sec. 58; Gould on Waters, 234; Cache La Poudre Irr. Co. v. Reservoir Co., 25 Colo. 144, 71 Am. St. Rep. 123, 53 P. 318; Ada Co. etc. Co. v. Farmers' Canal Co., 5 Idaho 791, 51 P. 990.)

QUARLES, J. Huston, C. J., and Sullivan, J., Concur.

OPINION

QUARLES, J.

There is only one question presented by the record in this case, to wit: Did the plaintiffs, by purchase at execution sale of the lands mentioned in the complaint, acquire with said lands and as appurtenant thereto, the shares of stock owned by the execution defendants in that certain corporation known as the Upper South Field Irrigation Company? The allegations of the complaint, which we must consider as true, the same being confessed by the demurrer, show: That said lands were attached under a writ of attachment that issued in the action brought by said plaintiffs against said execution defendants, Francis Wilcox and George Wilcox, on the seventeenth day of October, 1891, but did not attach the shares of stock held in said corporation by the said execution defendants, in the manner provided by subsection 4, section 4307 of the Revised Statutes. That said action proceeded to judgment in February, 1895, and the execution sale thereunder October 28, 1895, and sheriff's deed therefor was made May 1, 1896. That, many years prior thereto, the execution defendants and other residents in the immediate vicinity jointly built and constructed a canal by which water was diverted from Paris creek, and conducted to their lands, and there used for the...