Reynolds v. North Side Canal Co.

BUDGE, C. J. This is a mandamm proceeding. The material allegations of fact contained in petitioner’s affidavit-are as follows: That petitioner acquired the legal title to certain lands in Jerome county, embodied in a Carey Act segregation; that the contract for the construction of an irrigation system was entered into between the state of Idaho and the Twin Falls North Side Land & Water Company; that the Carey Act company entered into a contract with L. M. Nelson, petitioner’s predecessor, whereby it sold a water right to Nelson, evidenced by one share of the capital stock of the North Side Canal Company, Limited, for each acre of land covered by the contract; that each share of stock entitled the holder thereof to a supply of irrigation water at the maximum rate of flow of one-eightieth of a cubic foot of water per acre per second of time, with a proportionate interest in the rights, franchises and property [626] of the latter company; that the North Side Canal Company, Limited, was organized in accordance with the contract between the state of Idaho and the Twin Falls North Side Land & Water Company for the purpose of operating and maintaining such irrigation system, and was given, by virtue of that contract, the right to levy and assess tolls for such maintenance and operation; that it is a mutual nonprofit-making corporation organized for the sole purpose of operating the irrigation system aforesaid and distributing the waters thereof for the use and benefit of its stockholders; that the amount levied by it each year as maintenance assessments is the proportionate share of the actual cost of operating and maintaining such irrigation system, and that such assessments are the sole and only source of income for operating and maintaining the system; that the defendants, other than the North Side Canal Company, Limited, are the directors of that company; that the lands of petitioner are arid and desert in character and require the artificial application of water for the production of ordinary agricultural crops thereon and that the Canal Company has, in prior years, furnished and delivered water for the growing of crops on said land and that crops were planted thereon, on the 29th day of November, 1921, and crops are planted thereon at the present time and need water for irrigation, otherwise the crops will perish; that unless water is furnished crops cannot be grown thereon during the season of 1922; that on May 15, 1922, petitioner tendered to the Canal Company the sum of $34, and advised it that crops were then growing on the premises aforesaid and requested and demanded the delivery of water for the irrigation thereof during the season of 1922; that the amount tendered) Was the amount of the assessment levied for maintenance upon said premises during the season of 1922 which was due and payable April 1, 1922; that the Canal Company refused to accept said tender or to deliver water for said lands unless and until prior unpaid maintenance assessments were paid by petitioner. [627] Defendants demurred generally to the petition upon the ground that it failed to state facts sufficient to warrant the court in granting the relief sought. The question therefore to be determined is, whether the North Side Canal Company, Limited, through its officers, can refuse to deliver water to a stockholder upon the payment or tender of payment by him of assessment levied for any current year on account of assessments for such maintenance being unpaid for previous years. The contract now existing between petitioner and defendant company contains the following clause, upon which defendants rely: “It is agreed that no water shall be delivered to the purchaser from said irrigation system while any instalment of principal or interest is due and unpaid from the purchaser to the company or while any toll or assessment is due and unpaid from the purchaser to the North Side Canal Company, Limited.” This particular clause in similar contracts has been before this court for consideration upon prior occasions. In the case of Adams v. Twin Falls-Oakley Land & Water Co., 29 Ida. 357, 161 Pac. 322, it was held that that portion of the contract which provides that no water shall be delivered to the purchaser from said irrigation system while any instalment of principal or interest is due and unpaid from the purchaser to the company was illegal and void. In the case of Shelby v. Farmers’ Co-operative Ditch Co., 10 Ida. 723, 80 Pac. 222, it was held that that portion of the contract which provides that no water shall be delivered to the purchaser from said irrigation system while any tolls or assessments are due and unpaid from the purchaser to the company was illegal and void. In the course of that opinion this court makes the following pertinent observation: “If the defendant corporation permitted appellant to fall in arrears .... in the payment of his proportion of the maintenance and operating expenses of the canal, the statute gave it a remedy, and instead of threatening to shut off the water for the next year or any other time in [628] the future, it should have followed the remedy pointed out by the statute. It is ample and sufficient for the full protection of any company, corporation or person operating a ditch or canal in this state, and if rightly enforced does not work any injustice to the user, and yet guarantees the payment of all water dues from the consumer.” See also to the same effect: Crow v. San Joaquin & K. R. Canal & Irr. Co., 130 Cal. 309, 62 Pac. 562. The defendant company had 'the power, under its contract with the petitioner and under the statutes, to levy the assessments for maintenance and the further power to withhold the delivery of water until the assessment for the current year was paid or reasonable security given for payment thereof (C. S., sec. 5636), but under the provisions of article 15, sec. 4, of the constitution and C. S., sec. 5556, was without authority to withhold the delivery of water on account of nonpayment of past due assessments. (Parrott v. Twin Falls Salmon River Land & Water Co., 32 Ida. 759, 188 Pac. 451.) In our opinion the petitioner is entitled to the relief sought and to recover costs of this proceeding. McCarthy and Dunn, JJ., concur.