Thompson v. McFarland

McCARTY, J., after stating the case, delivered the opinion of the court. Appellant contends that, when the Hooper City Irrigation District was dissolved, the decree entered in its favor and the one which appellant is charged with having violated ceased to have 'any force or effect, ‘ and that he was no longer bound by it, and that the court erred in permitting the Hooper Irrigation Company to be substituted as the party plaintiff in the action in place of the trustees who commenced the proceedings in behalf of the irrigation district. On the other hand, counsel for respondent contends that, under section 2920, Eevised Statutes 1898, the cause of action survived, and that it can either be prosecuted and the decree enforced in the name of the trustees of the irrigation district or that of the Hooper Irrigation Company. This section of the statute is as follows: “An action or proceeding does not abate by the death or any disability of a party, or by the transfer of any interest therein, if the cause of action or proceeding survive or continue. In case of the death or any disability of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest. In the case of any other transfer of interest, the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be iubstituted in the action or proceeding.” [463] We do not tbink tbe ease under consideration comes within or is covered by the foregoing provision of the statute. When the Hooper City Irrigation District was organized,' all parties owning land under its system of canals, and who had an interest in and were entitled to the use of water from said canals for irrigation, became by operation of law members of said irrigation district, and their rights to. the control and management of the canals and the water flowing therein were thereby transferred to the body politic thus created, which, in the distribution of water, acted through its trustees. But the title to the property remained in the landholders, who, it is admitted, were still tenants in common. Neither the irrigation district nor its trustees had any power to transfer, sell, or otherwise dispose of the interests, or any part thereof, of the landholders within and under its jurisdiction. The irrigation district being a body politic and exercising certain functions and limited powers of a quasi-public character conferred upon it by law, when it was dissolved, there being no saving statute preserving and transmitting to some designated successor the powers thus conferred or established by decree of court, the right to control and distribute the water in question again reverted to the landholders in their individual capacity. (Bingham v. Weiderwax, 1 N. Y. 509; Hooker v. Utica, etc., Road Co., 12 Wend. 371; Thompson on Corp., secs. 6745, 6746.) After the dissolution the decree which had been entered in favor of the irrigation district, and which the defendant stands convicted of having violated, ceased to have any force, and the defendant was no longer bound thereby, as no transfer of interest was or could be made from the irrigation district to the new corporation. (10 Cyc. 1310; Thompson on Corp., secs. 6718-6722.) The only rights which the hew corporation acquired or could acquire were those which the invidual landowners conveyed to it at the time of or subsequent to its incorporation, as it did not and could not acquire any rights from the irrigation district. The record shows that there were some twenty-five or thirty members, including the defendant herein, who were landowners and entitled to the use of water from the canals un [464] der the' jurisdiction, and control of the irrigation district, who did not become and were not members of the new corporation at the time the trial was had and judgment entered against defendant. It does not appear from the record, nor is it contended, that these parties delegated to the new corporation the power to act for them in the control and distribution of the water in question. In z'hct, the articles of incorporation of the new company expressly limit its. power to deliver water to its stockholders only. Article 13, in part, is as follows: “This company shall deliver water only to the stockholders herein at the places where water is taken out of this company’s canals by the various lateral ditches of the stockholders, according to their respective rights in and to the waters running into the canal and ditches of this company as represented by their certificates of stock; and the number of acres and the description of the land which they will be entitled to irrigate by means of this company’s canals and the extent of their water rights shall be stated in the certificates of' stock.” While it appears from the record that each of the defendants to the action in which the decree in question was entered had an interest in the Hooper City irrigation canal and a right to the use of a portion of the water flowing therein, the extent of such right, was not defined and determined. In fact, no reference is made in the decree as to the quantity of water which Thomas McFarland and his codefendants were entitled to have distributed to them. Had the decree defined and fixed the amount of water to which they were entitled, and their rights in this respect adjudicated, and de-' fendant had, in violation of such decree, willfully taken more water than he was entitled to and had been proceeded against in the first instance by some party having an interest in the canal, quite a different question from the one before us would have been presented. The decree under consideration only deals with the right of certain officers to regulate the distribution of water among landholders entitled thereto, whose ti465 "ties to tbe water were not in dispute and were not adjudicated. ' In other words, the decree only determined the right of the trustees to perform a duty enjoined upon them by law, and when the irrigation district was dissolved and their office thereby abolished, as hereinbefore stated, the decree became inoperative. Even if it were conceded that the right of action to enforce the decree survived the dissolution of the irrigation district in favor of the new corporation, the judgment in this -case could not be upheld. The proceedings in the case are civil in character, and it is apparent that whatever damage, if any, resulted because of McFarland having taken the water as charged in the complainant’s affidavit was suffered by all the landholders in common, and was not confined to those ■only who became members and whose interests were merged in and represented by the new company; and, as we have suggested, even though it were conceded that the right of action survived in favor of the new company, then in such a ■case, while the company-might institute proceedings of this kind, yet, before it would be entitled to recover for actual ■or special damages, it would be necessary to prove such damages. (Davidson v. Munsey, 29 Utah 181, 80 Pac. 743.) No •evidence whatever was introduced which showed or tended to show that the new company (substituted plaintiff) had sustained any actual damages. Yet the court arbitrarily entered judgment in favor of the company and against defend- and for $550. It is claimed by counsel for respondent that this amount was allowed by the court and was intended 'to cover the costs and expenses of the proceeding, in which was included $500 as an attorney’s fee; but the judgment does not so state. In fact, no reference therein is made to costs and expenses, nor to attorney’s fees; and, as no findings were made in the case, the judgment is conclusive as to what the court intended. The judgment is reversed, with directions to the trial court to dismiss the proceedings. Costs of this appeal to be taxed against respondent. BARTCH, C. J., and STRAÜP, J., concur.