Helphery v. Perrault

AILSHIE, J.

This action was commenced for the purpose of procuring a writ of mandate compelling the defendants, doing business under the name of the Perrault Ditch Company, to turn out of their main canal and deliver to the plaintiffs “.14 of a second foot of water per second continuous flow,” for the purpose of irrigating certain lands belonging to the plaintiffs. The action is commenced by_ Daniel Helphery and twelve others. Helphery makes the affidavit in which he says “that he, together with the other above-named plaintiffs, own, possess and occupy the following described real estate, all situated in Lemp’s addition to Boise City, Ada county, Idaho, namely, etc.” He further deposes “that he is duly authorized to represent the interests of all the other plaintiffs herein, and is authorized to receive all notices, orders and directions necessary and proper to be made in and about, procuring, using andA distribution ■of the said water mentioned among these several plaintiffs ,....; that it is the desire of each and every of the said *453 plaintiffs herein that said water shall be used as among themselves as a single stream of water, they applying it to their said tracts of land at such times and in such manner as to them may seem proper.” It is also alleged that the plaintiffs have already constructed the necessary ditch or lateral at their own expense for the purpose of carrying and conveying the water applied for from the company’s main canal to and upon their respective lands. They allege the necessary and proper tender of a year’s rental for the amount and quantity of.water for which they applied. The defendants demurred to the complaint, or affidavit, on the ground that it does not state facts sufficient to constitute a cause of action or entitle them to a writ, and also on grounds of misjoinder of parties plaintiff. The demurrer was sustained by .the. trial court and judgment was entered dismissing the action and the plaintiffs have appealed. The only question that arises in this case for our determination is: Can the several plaintiffs by contract and agreement among themselves unite and join in interest and make a legal application and demand for water for all their lands jointly and have the same treated and considered as one application, and when water is turned out to them, apply it at such times and in such manner to their several tracts of land as they may decide upon among themselves ? In the first place, we think there is no doubt but that the plaintiffs have the right to enter into such contract and agreement among themselves for the application and use of the water at such times and in such manner as they may deem to be their best interests. If they choose to apply and use the water as among themselves in rotation, we have no doubt of their right to do so. This right being recognized, it necessarily follows that so soon as they have entered into such a contract or agreement a common right and interest at once arises among them which entitles them to join as coplaintiffs in an action for the preservation and protection of such right. (Rev. Stats., sec. 4101; Frost v. Alturas Water Co., 11 Idaho, 294 , 81 Pac. 996 .)

*454 It is argued by counsel for respondents that neither the constitution nor statutes of this state recognize the right of water users to enforce upon ditch companies the delivery of water by rotation. They contend that the only water right recognized is one of a continuous flow. Without deciding that question, the proposition may be fully conceded for the purpose of this case, for the reason that the plaintiffs do not ask that the water company deliver the water to them in rotation, but, on the other hand, they ask for a continuous flow of .14 of a second foot turned into their ditch at the head-gate. If this should be done, the only duty of the company would be to see that the required volume of water is kept flowing in at the plaintiff’s headgate continuously. The rotation and distribution of the water among the several plaintiffs will be a matter of no concern to the ditch company, and one exclusively for the determination and disposition of the several plaintiffs. The ditch company will only have to deal with one person, namely, the agent or representative of the several plaintiffs. Rotation in irrigation undoubtedly tends to conserve the waters of the state and to increase and enlarge their duty and service, and is, consequently, a practice that deserves encouragement in so far as it may be done within legal bounds.

Respondents have argued that plaintiffs’ action should fail, for the reason that the application for the use of the water was not made prior to the first day of January, as prescribed by section 20 of the irrigation act of February 25, 1899 (Sess. Laws 1899, p. 383). We do not think that objection is well taken in a ease where all prior applicants for water have been supplied and the ditch company still has water for rental and distribution. The provisions of section 20 of the act referred to were intended for a regulation between different applicants and also for a protection to the company, as well as the consumer, where one applicant had previously used the water on his land and another applicant had never before applied water'to his land.

*455 The complaint states a cause of action and the demurrer should have been overruled. The judgment is reversed and the cause remanded, with directions to the trial court to overrule the demurrer and allow the defendants ten days in which to answer the complaint. Costs awarded to appellants.

Sullivan, J., concurs.