City of Nampa v. Nampa & Meridian Irrigation District

AILSHIE, C. J. — This action was instituted by the city of Nampa and J. H. 'Walling, George Everett and G. W. Lam-son, the former as a municipal corporation and the individuals as water users within the corporate limits of the city, praying for a writ of mandate against the defendant irrigation district to compel the district to deliver water to its water consumers within the corporate limits of the city of Nampa through underground pipes. A demurrer to the complaint was sustained and an appeal was taken by the plaintiffs to this court, and the judgment of the lower court was reversed (City of Nampa, v. Nampa & Meridian Irr. Dist., 19 Ida. 779, 115 Pae. 979) and the cause was remanded for further proceedings. An answer was filed in the trial court and the case was tried on its merits, and judgment was entered in favor of the plaintiffs granting a writ of mandate against the district. Practically all the questions of law essential to be determined in the case on this appeal were passed upon in the former appeal. In so far as any question considered and passed upon in the previous appeal was necessary or essential to the determination of that appeal, it becomes the law of the case in all subsequent proceedings in the same action from the consequences of which the appellate court cannot thereafter depart. (Hall v. Blackman, 9 Ida. 555, 75 Pac. 608; Hunter v. Porter, 10 Ida. 86, 77 Pac. 434; Steve v. Bonners Ferry Lumber Co., 13 Ida. 384, 92 Pac. 363; Palmer v. Utah & Northern R. R. Co., 2 Ida. 382, 16 Pac. 553; Lindsay v. People, 1 Ida. 438; Gerber v. Nampa & Meridian Irr. Dist., 19 Ida. 765, 116 Pac. 104.) On the former appeal (City of Nampa v. Nampa & Meridian Irr. Dist.) the court decided the following propositions, which seem to have been necessary and essential to the proper determination of that appeal: (1) That the irrigation district was lawfully and rightfully engaged in the irrigation business within the corporate limits of the city of Nampa, and that a portion of the city, including the lots of the users who were parties to that action, was included and incorporated within the Nampa & Meridian Irrigation District. (2) That the irrigation district had a [426] legal right to run and operate its ditches, canals and distributing laterals within the corporate limits of the city of Nampa, and that such right is subject to the power of the city to regulate the manner of the exercise thereof, and that the city has a right to change its street grades and thereby require a corresponding change in the conduit or means of delivery of water, and that in exercising this right vested in the city to grade its streets, it may remove and destroy ditches and require the delivery of water through pipe-lines beneath the surface-of the street. The foregoing legal propositions were fairly involved in the previous appeal, and their determination by this court adversely to the contention of the irrigation district has become the law of the case, and is binding upon the courts in all subsequent proceedings in the case. The appellant company is a quasi-public corporation, organized to conduct business for the private benefit of the owners of lands within its limits and of such a character as to concern and interest the public generally. It was organized under the general statute of March 9, 1903. (Sess. Laws 1903, p. 150; Nampa etc. Irr. Dist. v. Brose, 11 Ida. 474, 83 Pac. 499.) Under the statute it was authorized to incorporate within its limits lots and lands lying within a town or village. (Nampa etc. Irr. Dist. v. Brose, 11 Ida. 475, 83 Pac. 499.) Now, it is clear to us that when the legislature authorized an irrigation district to include within its boundaries lots and lands within a municipal corporation, the legislature thereby granted and conferred the necessarily implied power upon such irrigation district to enter the town or village and build and construct its irrigation works. In other words, the act of the legislature in authorizing the incorporation of such a district necessarily carried with it the franchise to enter the streets and alleys of such towns and villages or the streets and alleys of the portion of a town that might be included within such irrigation district. On the other hand, the legislative act granting the right to include town lots within an irrigation district and the implied power to enter •the streets and alleys for the purpose of delivering water, does [427] not take away or diminish the power of the town or village to control and supervise its streets and to direct the manner and method of their use by such a district. The municipality still has the right to regulate the use of its streets and to prescribe the manner and method to be pursued by an irrigation district in conducting water over or through the streets in order to deliver it to water users and consumers at its canal or lateral nearest the land or lot to be irrigated. If the city authorities deemed it necessary to have the water conducted through underground pipes instead of being delivered through open ditches, it was clearly within the power and authority of the city to take such action and prohibit the use of the streets in a different manner. Of course, the city could not compel the irrigation district to build a pipe-line, but it could prohibit it carrying water through an open ditch. The water consumer, on the other hand, who has acquired a right to the use of water from this system may have his writ to compel the delivery of water to him at the most available points on the line of the main or lateral nearest him. If the city can prescribe the method in which water may be delivered through its streets, and the water user, on the other hand, has acquired a constitutional right to have water delivered to him from the canal or lateral of the district system, then it would seem that the irrigation district is left only the one alternative, namely, to construct a pipe-line and deliver water to the consumers through such line. It is clear that the district must construct its necessary canals and laterals within the corporate limits of the city and pay for such construction as the law directs. As was stated in the opinion in this case on a former appeal (19 Ida. 779, 115 Pac. 979) : “Under these facts the lot owners have become entitled to the use of water from the defendant’s system, and the defendant must, in the first instance, construct its system within its franchise limits at its own expense. It cannot compel the user of water to pay for any part of the system. ’ ’ However, as we understand it, the users of water were required to construct their own laterals from the main canal and laterals of the district, and the district would not be re [428] quirecL to pay for the construction of such private laterals as supply each of the users from the laterals that constitute the district system. The judgment of the district court should be affirmed, and it is so ordered. Costs awarded in favor of respondent. Sullivan and Stewart, JJ., concur. Petition for rehearing denied.