Nampa & Meridian Irrigation District v. Petrie

MCCARTHY, J. — Respondent is an irrigation district. Appellants are owners of certain lands of the district. The district entered into a contract with the United States government for three main purposes: (1) to build a drainage system for the district, (2) to furnish full water rights for about 40,000 acres of dry land in the district and (3) to furnish a supplemental supply of stored water from the Arrowrock reservoir to be used upon some lands within the district. The validity of this contract and all proceedings in connection therewith was confirmed by a decree of the district court, affirmed by this court in Nampa & Meridian Irr. Dist. v. Petrie, 28 Ida. 227, 153 Pac. 425. Thereafter the board of directors of the district determined the benefits to the several tracts of land from the construction of the irrigation „ and drainage works and assessed them accordingly. Upon proceedings had in the district court for confirmation of the assessment-roll, certain modifications were made in the findings and assessment-roll, and the apportionment of benefits and assessments as so modified was confirmed. From this decree appellants prosecute this appeal. The principal assignments of error relied upon by J. G-. Petrie and other appellants represented by Messrs. Eldridge and Morgan are that the court erred in approving and confirming the apportionment of benefits, (1) because it did not make proper allowance for water rights already owned by the appellants, and, in the ease of appellant Blucher, did not make sufficient allowance for damages to his waste water right caused by respondent’s irrigation and drainage system, — 51 — (2) because appellants were not benefited by the drainage system. The case of appellant Haga is a little different from that of the other appellants. He relies on the second assignment of error mentioned just above, in addition to which he contends that the court erred in deciding that he must use his old water right on certain fractional parts of his land, and the new water right acquired through respondent upon other portions of his land, instead of treating them as one entire water right, and making them appurtenant to the entire farm. We conclude that the evidence is sufficient to support the finding of the court as to the benefits accruing to the land of all appellants from the water right furnished by the contract in question, and to support the assessment and decree based thereon. If it should be conceded that appellant Blu cher’s use of the subterranean waters as shown by the evidence gave him a valid water right, nevertheless the additional water right furnished for his land under the contract would be a sufficient benefit to the land to justify the assessment made. We conclude, however, that he had no right to insist the water-table be kept at the existing level in order to permit him to use the underground waters. There is no proof that he secured water from a natural subterranean stream. The evidence tends to show that he secured it from water collected beneath the surface of the ground due to seepage and percolation. To hold that any land owner has a legal right to have such a water-table remain at a given height would absolutely defeat drainage in any case, and is not required by either the letter or spirit of our constitutional and statutory provisions in regard to water rights. As to the contentions peculiar to the appeal of Mr. Haga we conclude that the court erred in dividing his water right into two parts and making the water procured under the contract in question appurtenant to part of the land, and the old water right appurtenant to the rest. In support of this action of the court respondent relies upon certain lan — 52 — guage used in Nampa & Meridian Irr. Dist. v. Petrie, supra. We do not interpret that decision to have the effect contended for by respondent. In any event we conclude that the respondent’s contention in this regard is not sound. The court in that case did hold that the Secretary of the Interior had power to make a regulation that no land owner under the project should be granted a water right in excess of the amount necessary to irrigate 160 acres. It does not follow by any means that the Secretary of the Interior would have the right to provide that a supplementary water right, purchased to be used in connection with an existing water right, should be used exclusively on any one particular 160 acres of an entire tract. Such a provision would be arbitrary and entirely out of keeping with both the letter and spirit of our irrigation laws. As to appellant Haga, the findings and decree must be. modified so as to provide that the supplementary water right furnished him under the contract, and his pre-existing water right may be used upon the total acreage of land which he owns within the district or any portion of it. The most serious question is whether or not the apportionment for benefits and assessment for drainage can be sustained. The assessment for drainage is a flat rate of $7 per acre on all lands in the district. This was done on the theory that the cost of the drainage can be charged to operating expense and prorated among the land owners of the district like any other operating expense. Respondent relies upon the following decisions of this court: Bissett v. Pioneer Irr. Dist., 21 Ida. 98, 120 Pac. 461; Pioneer Irr. Dist. v. Stone, 23 Ida. 344, 130 Pac. 382; Nampa & Meridian Irr. Dist. v. Petrie, 28 Ida. 227, 153 Pac. 425. The statement in the first named case that an irrigation district is under an obligation to take care of seepage and overflow and protect the lands is pure dictum. If it means that an irrigation district is absolutely liable for injury caused by seepage water in the absence of negligence on its part, it is squarely in conflict with the rule long established in this and 'all the — 53 — other arid and semi-arid states, that one who conducts irrigation water through a ditch, or uses it on his land is not liable for injury caused by seepage unless he is negligent in the construction or operation of the ditch, or the use of the water. (McCarty v. Boise City Canal Co., 2 Ida. 245, 10 Pac. 623; Arave v. Idaho Canal Co., 5 Ida. 68, 46 Pac. 1024; Stuart v. Noble Ditch Co., 9 Ida. 765, 76 Pac. 255; Verheyen v. Dewey, 27 Ida. 1, 146 Pac. 1116; Burt v. Farmers’ Co-op. Irr. Co., 30 Ida. 752, 168 Pac. 1078.) There is no proof and no contention that the district was negligent. In Pioneer Irr. Dist. v. Stone and Nampa & Meridiem Irr. Dist. v. Petrie this court simply held that an irrigation district has the power to contract for the construction of a drainage system under the irrigation district law. There is nothing in the opinions to indicate that the district can charge the cost as an operating expense and make a flat assessment. On the contrary, in Nampa & Meridian Irr. Dist. v. Petrie, the court said: ‘ ‘ 5. Where a contract is entered into between an irrigation district and the United States, providing, among other things, that arid lands within the jurisdiction of the irrigation district, in order to secure a full water right from a government project, shall be assessed not to exceed $75 per acre, such contract is subject to the laws of this state governing irrigation districts and to the apportionment of benefits thereunder, and the fixed charge to be assessed against the lands of any particular land owner within such irrigation district for such water right will be finally determined by the district court of the judicial district within which said irrigation district is located, as provided by secs. 2400-2403, Rev. Codes. “6. The same rule and the same procedure, as indicated in paragraph 5, is to be followed in the assessment of benefits with reference to the sale of partial water rights to supplement water rights already existing, and also with reference to the assessment of benefits incident to the construction of a drainage system within an irrigation district. ’ ’ — 54 — The opinion makes it perfectly clear that the contract is subject to the laws governing irrigation districts in the assessment of benefits (p. 237). The section of the statute governing the apportionment of benefits and assessment is C. S., sec. 4362, which provides that the assessment must be made in accordance with the benefits which will accrue to each of the tracts or subdivisions from the construction of the works. Respondent had no more right to assess the cost of the drainage system to the lands regardless of benefits than it had to assess the cost of the irrigation system in the same way. The provisions of the statute under which respondent was created and operated compel it to assess the cost according to benefits. This means actual benefits resulting in an increase in the value of the land. There is no contention that the benefits were determined or the assessments made on this basis. As to some of the land, such as that of appellant Haga, there is no showing that it will ever need drainage. In other instances expert testimony is offered to show that the prospective rise in the water-table, expected by reason of past experience, may in the future bring about a condition where the lands will need drainage. It is well settled that an assessment cannot be based upon speculative, future benefits, but must be based upon a present benefit, immediately accruing or demonstrably certain to accrue from the construction of the work. (State v. City of Elizabeth, 37 N. J. L. 330; Re Pequest River Commrs., 39 N. J. L. 433; State v. City of Elizabeth, 40 N. J. L. 274; Myles Salt Co. v. Board of Commrs., 239 U. S. 478, 36 Sup. Ct. 204, 60 L. ed. 392, L. R. A. 1918E, 190.) It is clear that the assessment was not made on the ground of benefits as pro vided by the statute; in fact, there is no contention that it was. The method admittedly adopted for assessing the land for drainage was clearly in violation of the statute. An assessment of all lands of the district on the basis of a flat rate can be made only for maintenance and operating charges. Such a method of assessment cannot be resorted to in order to pay for the construction of the irrigation or — 55 — drainage system. If the land is to be assessed for drainage by the respondent under its present organization, it must be done on the basis of benefits, in strict compliance with the provisions of the irrigation law by virtue of which respondent exists and by which it is governed. If respondent were organized as a drainage district, a more equitable method' of assessing the cost of the drainage system could be adopted, to wit, assessing the wet lands according to benefit and the dry lands according to contribution. The section of the drainage law authorizing assessment for contribution, C. S., sec. 4506, was not in existence when respondent was organized and the contract made. Moreover respondent has never been organized as a drainage district, but is purely an irrigation district. The irrigation district law contains no provision for assessing land on the ground of contribution. The authority to create the two sorts of districts is granted by entirely different and separate statutes, and the proceedings for the creation of the two 'are separate and different in many particulars. This court has no authority to make a drainage district out of an irrigation district by mere judicial fiat. If the land comprised within respondent irrigation district could be, and should be, now organized into a drainage district by complying with the drainage statute, the drainage project already constructed could be taken over under C. S., see. 4538, and assessments made for contribution as well as for benefits. As to whether that can be done at this stage of the proceedings we express no opinion, as the matter is not squarely before us and has not been presented by counsel. That portion of the judgment which relates to the assessment of appellant ITaga’s land for irrigation purposes is ordered modified in accordance with the views herein expressed. That portion of the judgment which relates to the assessment of the lands for drainage purposes is reversed. If it is desired to again assess the land within the district for drainage purposes under the present organization, it is or — 56 — dered that further proceedings be had in accordance with the views expressed in this opinion. No costs are awarded on this appeal. Budge, C. J., and Wm. E'. Lee, J., concur. (March 6, 1924.)