Farmers' Co-operative Ditch Co. v. Riverside Irrigation District, Ltd.

AILSHIE, C. J.

This action was instituted by the Farmers’ Co-operative Ditch Company against numerous appropriators of water from the Boise river, for the purpose of adjudicating the priorities among the several appropriators. The complaint was filed on August 20, 1902. The defendants answered and also filed cross-complaints setting up their several rights, appropriations and priorities, and asking for affirmative relief decreeing their several appropriations and *456 the times from which they should date. After the commencement of this action, the trial court, proceeding under the authority of the act of the legislature of March 11, 1903 (Sess. Laws, pp. 223-252), made an order directing and requiring the state engineer to make an examination of the stream and of all the canals and ditches diverting water therefrom, and of the lands irrigated thereunder and susceptible of reclamation therefrom, and to prepare a map showing the same as specifically pointed out by sec. 37 of the act. The survey was made at a cost of about $11,000. After the completion of the survey and the plats were filed, the ease was tried by the court without a jury. On January 18, 1906, findings of fact and conclusions of law and judgment were made and entered. This appeal is from the judgment, and is prosecuted by the Nampa & Meridian Irrigation District, which is the successor in interest and assignee of the Boise City Land & Water Company.

The first contention urged by the appellant is that the court erred in not finding as to all of the individual users of water under the various ditches and canals, and the amount of water used by each and necessarily required for the irrigation of his land, and the particular description of the land upon which he was using and entitled to use water. In support of this contention, counsel relies on sec. 38 of the act of March 11, 1903. That section, among other things, provides that the decree of the court shall be according to the rights and priorities of those using the waters, and shall be made to the use to which such water is beneficially applied, and that when once decreed, the right shall become appurtenant to the land and become a part of the land, and that the ‘ ‘ decree shall describe the land to which such water shall become so appurtenant.” To our minds there are several reasons why the appellant’s contention is not well taken here. In the first place, the appellant never raised this question in the trial court, and has never presented the same to the trial court,, but, on the contrary, invited tlfe error, if indeed it be error. The court in every instance has described the lands either in the exact language of the complaint or cross-complaint, or by *457 direct reference thereto. Such is true with reference to appellant’s lands, and its decree allows it the amount of its appropriation for all lands under its ditch as described in its cross-complaint. In appellant’s cross-complaint it alleges that the lands under its ditch susceptible of irrigation therefrom aggregate 80,000 acres, but does not describe that land by legal subdivisions. If appellant wanted a more specific description of its land, it should have furnished the same to .the court by its pleadings. On the other hand, if it wanted a more specific description made of the lands of other appropriators than is contained in the complaint and cross-complaints, it should have raised the question in a proper manner, and reserved an exception in the event the court ruled against it. It failed to do any of these things, and is therefore in the position of one who invites error, and will not be allowed a reversal of the judgment on that account. (3 Cyc. 242; Borden v. Croak, 131 Ill. 68 , 19 Am. St. Rep. 23 , 22 N. E. 793 ; Gumaer v. Draper, 33 Colo. 122 , 79 Pac. 1040 .)

The question is also presented here as to whether sec. 38 of the act of March 11, 1903, is applicable to water users who have no right by appropriation, but whose right is founded upon one of use and is purely a rental right as distinguished from a right by appropriation and diversion. This action was originally instituted to determine the respective rights and priorities among the various appropriators and diverters of the waters of the Boise river, and the plaintiff only made such parties defendants as had constructed ditches and diverted water from the stream. As to some of those ditches the appropriators were also the users of the water; they owned the water right and used the water on their own lands. Others were co-operative ditch companies where a number of water users had joined together and constructed a ditch, each one owning a number of shares in the company which entitled him to a proportionate amount of the water of the canal; while by still other ditches the waters were appropriated and diverted, not for the immediate use of the ditch owners, but for the purpose of sale, rental and distribution. l'Whatever the differences may be in the facts with reference *458 to the use and application of the water, the ditch owners in every instance are necessarily the appropriators of the water within the meaning of the constitution and statute. In Wilterding v. Green, 4 Ida. 780 , 45 Pac. 134 , this court said: “A company or individual may appropriate and take out the water of a stream for sale, rental or distribution or for any beneficial purpose. When so taken out it becomes a public use and the sale or rental of it for pay is a franchise.” It is true, as intimated by this court in Hard v. Boise City Irr. Co., 9 Ida. 602 , 76 Pac. 331 , 65 L. R. A. 407, that the appropriation and diversion of water by a ditch company that is not prepared to use the water itself is practically valueless without water consumers. In other words, it takes the water user, applying the water to a beneficial purpose, to enable a ditch company that has appropriated waters for sale, rental or distribution, to continue the diversion of the water. If it should cease to have water consumers or users, and cease to apply the water to a beneficial use, its right to divert the water would cease. That principle has been recognized by see. 38 of the act above mentioned, wherein it requires that where a company has works capable of diverting more water than it is then applying to a beneficial use, the decree shall not allow it to exceed four years thereafter in which to apply the water to a beneficial use. It is most strenuously urged by the appellant here that the court erred in not ordering all these water consumers under the several ditches brought in as parties to this action for the purpose of determining and adjudicating their various rental rights. Counsel insist that they were indispensable parties. That contention is wholly unfounded. They would have been proper parties, and the court might, perhaps, have ordered any one or all of them in, and on application of any of the parties litigant the court would doubtless have made an order directing that they be brought in, but a failure to bring them into court in no way avoids or vitiates the decree as between the parties who were in court or participated in this action. The appropriation of waters carried in the ditch operated for sale, rental and distribution of waters does not belong to the water users, but *459 rather to the ditch company. The right to the use of such water after having “once been sold, rented or distributed to any person who has settled upon or improved land for agricultural purposes,” becomes a perpetual right subject to defeat only by failure to pay annual water rents and comply with the lawful requirements as to the conditions of the use. (Sec. 3, art. 15 of the Constitution; Bardsley v. Boise Irr. & Land Co., 8 Ida. 155 , 67 Pac. 428 ; Wilterding v. Green, 4 Ida. 773 , 45 Pac. 134 .) A decree in favor of a water user from such ditch could not relieve him from any constitutional or statutory requirements, nor could it put him in any better position or condition than he already finds himself. His presence in the action is in no respect essential to the adjudication of the rights of the several appropriators from the stream itself. Any controversy he may have is with the ditch company from which he receives water or with other consumers under the ditch over the question of priority of use. The appellant in this action answered the plaintiff's complaint but made no suggestion of want of necessary parties. It also filed a cross-complaint and made no offer or attempt to bring in any other parties, nor did it make any request to the court to order any other parties brought into the action. In view of these facts, it cannot now be heard for the first time on such objections in urging a reversal of the judgment.

In paragraph 3 of the findings of fact, the court made a general finding as to the quantity of water required for the successful irrigation of the lands irrigated from the Boise river. It found that “for bench lands 1 inch per acre” is necessary, and that “for bottom lands 1-1/10 inch per acre” is necessary. The appellant assigns this finding as error on the ground that the court has not described the lands he terms bench lands and those he terms bottom lands. The appellant is in no position on this appeal to question the finding for the following reason: This finding No. 3 is merely a finding of the basis on which the court has concluded to apportion the water; the quantity of water per acre he intended to allow the several appropriators. “When the court came to making the specific findings as to the number of inches of water each *460 appropriator was entitled to, he found the date from which such appropriator was entitled to take his water and the number of inches to which he was entitled for the lands described in his complaint or cross-complaint. The latter finding was presumably made upon the basis of one inch for bench lands and one and one-tenth inch for bottom lands. We assume the court followed that standard.. If, in fact, he has not, the failure to do so must appear, from the evidence, and would necessarily have to be reviewed on the motion for a new trial or appeal from an order denying the same. On this appeal, we must presume that the court made its decree to the various appropriators on this basis. No evidence has been brought here. If, on the contrary, the basis or standard laid down by the court as the one it intended to follow is not supported by the evidence, that, too, must be determined from the evidence and cannot be passed upon on this appeal from the judgment.

Again, complaint is made by the appellant of the action of the court in apportioning among the various parties to the action the expense of making the survey and maps and plats by the state engineer, which amounted to $10,804.60, and the “expense incurred in preparing findings and decrees herein and in filing and recording the same in the counties of Ada and Canyon,” which amounted to the sum of $468.66. This total sum of $11,273.26 the court “apportioned to the several parties in the proportion as water is herein allotted to them.” Appellant complains of this principally upon the grounds that no cost-bill was filed, contending that under the provisions of sec. 4912, Rev. Stat., as amended, it was entitled to have a cost-bill served on it and the opportunity of opposing or resisting the taxation of the whole or any part thereof. In Boise Irrigation & Land Co. v. Stewart, 10 Ida. 38 , 77 Pac. 25, 321 , this court sustained the right and power of the district judge to order the surveys, and also held that the cost thereof would be properly apportioned to the several parties to the action, and that each would have the right to contest the whole or any part thereof. A party dissatisfied with any part of the expense of this survey that was *461 assessed to him bad a right to appear in court and move against such assessment and that part of the judgment, and would have been entitled to a hearing thereon. It was not necessary to have a cost-bill filed in order to enable the dissatisfied party to avail himself of the right of contesting the costs taxed against him for this purpose. These costs are clearly not within the purview or contemplation of the statute which requires the filing of a cost-bill. Presumably, no one had paid such costs. The engineer was not employed by any one of the parties litigant, and consequently no one had become personally liable for the costs. The court had directed the survey, but evidently did not pay the bill and was not a party to the litigation. The expense of the survey was a proper charge against all the litigants, and it was entirely proper and clearly within the jurisdiction and authority of the trial court to apportion these costs as he did, and enter judgment against the several parties to the action as was done in this case.

There was no error in the action of the court in this respect. The judgment should'be affirmed, and it is so ordered. Costs awarded in favor of respondents.

Sullivan, J., concurs. Stewart, J., took no part in the decision.