Opinion
March 24, 1927.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.
Appeal from judgment of confirmation of drainage district proceedings. Judgment for defendants. Affirmed.
J.B. Eldridge, for Appellants.
The commissioners are authorized to assess benefits against a "tract, lot or easement" and also authorized to assess benefits against a "municipality or corporation" should the same derive a public or special benefit from any part of the work. (C. S., sec. 4504, subd. 5; In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315.)
"A property right to the use of water from an irrigation ditch acquired or reserved under contract constitutes an easement in the ditch." ( People ex rel. Standart v. Farmers' High Line S. Canal Resev. Co., 25 Colo. 202, 54 P. 626; Nampa-Meridian Irr. Dist. v. Gess, 17 Idaho 552, 556, 106 Pac. 993; Murphy v. Kerr, 296 Fed. 536; Henrici v. South Feather Land Water Co., 177 Cal. 442, 170 P. 1135; Stanislaus Water Co. v. Bachman, 152 Cal. 716, 93 P. 858, 15 L.R.A., N.S., 359; Bolles v. Pecos Irr. Co., 23 N.M. 32, 167 P. 280.)
A water right is real estate. ( Gard v. Thompson, 21 Idaho 485, 123 P. 497; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; Nampa-Meridian Irr. Dist. v. Briggs, 27 Idaho 84, 147 P. 75.)
It is also appurtenant to land. ( Taylor v. Hulett, 15 Idaho 265, 97 P. 37, 19 L.R.A., N.S., 535; Paddock v. Clark, 22 Idaho 498, 126 P. 1053; Medford Irr. Dist. v. Hill, 96 Or. 649, 190 P. 957.)
No stipulation of the parties who appeared in the cause, and no judgment based upon such stipulation, as between them, could be binding upon the other land owners in the district, who did not appear, if no such notice as required by law was given.
Persons not joining in the stipulation cannot be bound by it even if attorneys had authority to make it. ( Kneeland v. Luce, 141 U.S. 437, 12 Sup. Ct. 39, 35 L. ed. 808; Western Lunatic Asylum v. Miller, 29 W. Va. 326, 6 Am. St. 644, 1 S.E. 740.)
The following drainage cases, under statutes similar, hold that railroad rights of way are assessable: Chicago N.W. R. R. Co. v. Board of Supervisors, 171 Iowa, 741, 153 N.W. 110; Drainage District v. Chicago B. Q. R. R. Co., 96 Neb. 1, 146 N.W. 1055; Forest v. Atlantic Coast Line R. R. Co., 159 N.C. 547, 75 S.E. 796; Milne v. McKinnon, 32 S.D. 627, 144 N.W. 117; Northern Pacific R. R. Co. v. Richland County, 28 N.D. 172, Ann. Cas. 1916E, 574, 148 N.W. 545, L.R.A. 1915A, 129.
In Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 P. 904, the railroad right of way was held subject to assessments for benefits in an irrigation district. Under the express terms of C. S., sec. 4504, corporations may be assessed. ( In re Drainage Dist. No. 1, 29 Idaho 377, 161 Pac. 315.)
Omitting lands that should have been assessed renders whole assessments void. ( Spring Creek Drain. Dist. v. Elgin R. Co., 249 Ill. 260, 94 N.E. 529; People v. Cole, 128 Ill. 158, 21 N.E. 6; Gilkerson v. Scott, 76 Ill. 509; Nevins Otter Creek Township Draining Co. v. Alkire, 36 Ind. 189; Freeman v. Thimbe, 21 N.D. 1, 129 N.W. 83; Fraser v. Mulany, 129 Wis. 377, 109 N.W. 139.)
This court in the case of Burt v. Farmers' Co-op. Irr. Dist., 30 Idaho 752, 168 P. 1078, held that C. S., sec. 4506, includes easements and rights of way, and said section must be construed with subd. 5, sec. 4504, to the end that corporations as well as easements may be assessed.
P.E. Cavaney, for Respondents.
A mere statement that the trial court erred without pointing out specifically where the court erred cannot be considered. ( Abernathy v. Peterson, 38 Idaho 727, 225 P. 132; Hill v. Porter, 38 Idaho 574, 223 P. 538; Bain v. Olsen, 39 Idaho 170, 226 P. 668.)
There is no assignment of error that the evidence in this record does not support the findings and judgment of the trial court. ( Choate v. North Fork Highway Dist., 39 Idaho 483, 228 Pac. 885; Keltner v. Bundy, 40 Idaho 402, 233 P. 516.)
The district could not legally have included the New York Canal right of way and assess the United States for same, for the reason that said property belonged to the United States and would not be subject to assessment without statutory authority or by an act of Congress. ( State v. Johnson, 111 Minn. 255, 126 N.W. 1074; In re Drainage Dist. No. 5, 39 Idaho 477, p. 480, 228 Pac. 881; State ex rel. Latimer v. Henry, 28 Wn. 38, 68 Pac. 368.)
Railroad right of way is not subject to assessment. (C. S., secs. 4504, 4506.)
Assessments are against the property and not against the person. (C. S., sec. 4505; Elliott v. McCrea, 23 Idaho 524, 130 Pac. 785; Burt v. Farmers' Co-op. Irr. Co., 30 Idaho 752, 168 Pac. 1078.)
The benefits that may be assessed are limited, specific and defined. ( In re Drainage Dist. No. 1, 29 Idaho 377, 161 Pac. 315, 321.)
"The commissioners are enjoined by the statute to assess against each tract, lot or easement of high land its proportion of the estimated costs of the works in accordance with its proportion of responsibility for damage to low lands of the district by seepage irrigation water." ( Drainage Dist. No. 2 v. Extension Ditch Co., 32 Idaho 314, 182 P. 847, 850.)
"Special benefits for which a land owner may be assessed as distinguished from general benefits for which he may not be assessed are whatever increases the value of the land, relieve it from a burden, or make it specially adapted to a purpose which enhances its value." ( In re Drainage Dist. No. 1, supra.)
Even a general benefit cannot be sustained where the assessment is discriminatory and inequal. ( Browning v. Hooper, 269 U.S. 396, 46 Sup. Ct. 25, 70 L. ed. 330; Myles Salt Co. v. Board of Comm., 239 U.S. 478, 36 Sup. Ct. 204, 60 L. ed. 392; Thomas v. Kansas City So. Ry. Co., 261 U.S. 481, 43 Sup. Ct. 440, 67 L. ed. 759; Northern Pac. Ry. Co. v. Walla Walla County, 116 Wn. 684, 200 P. 585, 597.)
Remonstrants cannot complain of the stipulation of counsel for the district affecting the Oregon Short Line and the Artesian Water Company, for the reason that the effect of said stipulation in no way affects the rights of remonstrants. ( Sny Island Levee Dr. Dist. v. Shaw, 252 Ill. 142, 96 N.E. 984; Iroquois Drainage Dist. v. Harrison, 222 Ill. 489, 78 N.E. 780; Sacramento Co. Rec. Dist. No. 3 v. Goldman (Cal.), 4 P. 676; Payne v. Ward, 28 Cal.App. 553, 153 P. 462; White v. Papillion Dr. Dist., 96 Neb. 241, 147 N.W. 218; O'Brien v. Schneider, 88 Neb. 479, 129 N.W. 1002; 229 U.S. 629, 33 Sup. Ct. 774, 57 L. ed. 1358.)
Counsel was within his rights to stipulate the matters contended in the stipulation complained of. ( McLean v. Truckee-Carson Irr. Dist. (Nev.), 245 P. 285; Drainage Dist. No. 2 v. Extension Ditch Co., 32 Idaho 314, 182 P. 847.)
The commissioners had a right under the law in this state to exclude the Oregon Short Line Railroad right of way, and this fact would not be ground for setting aside the organization of the district. ( Barnes v. Divernon, 123 Ill. App. 621; Mackey v. Hancock Co., 137 Iowa, 88, 114 N.W. 552; 19 C. J., sec. 16, and cases cited in notes.)
Certain settlers filed with the court their petition praying the organization of Drainage District No. 3 in Ada county. Appellants protested, and the court made a temporary order organizing the district and excluding from the territory as proposed the New York Canal. Ultimately, the commissioners filed their report to which appellants filed an original and later an amended remonstrance. The issues were tried, and on July 8, 1924, the court rendered its order and judgment confirming such report and finally organizing the district. Remonstrants have appealed from said order and judgment "confirming the report of the commissioners of Drainage District No. 3, and organizing the same, and confirming the assessments therein made and provided, and rendered judgment and made its order aforesaid in favor of said defendants and against said remonstrants and plaintiffs herein, and from the whole of said order and judgment." Errors assigned are: (1) The court erred in excluding the New York Canal and all of the interests therein in the temporary order organizing the district; (2) the court erred in holding and deciding that the water rights and interests of the individuals, canal companies and irrigation districts in the New York Canal do not constitute an easement; (3) the court erred in holding and deciding that the Oregon Short Line Railroad right of way did not contribute to the seepage and saturation of the wet area and for that reason should not be assessed for damages or benefits; (4) the court erred in confirming the stipulation of counsel for the district and the Oregon Short Line and Artesian Water Company in which the Short Line was relieved from assessment and its lands excluded from the district and the benefits of the water company fixed by stipulation; (5) the court erred in confirming the report of the commissioners.
Assignments 1 and 2 can be considered together. Remonstrants concede in their pleadings that at the time of the hearing the United States government had purchased the New York Canal, and was operating the same. They further alleged, and it was not denied, that under the agreements of purchase the government was delivering to the stockholders of the New York Canal waters for some 26,000 acres, and that in addition it was furnishing through the canal water for various and divers irrigation districts, including the Boise Project, comprising in itself some 143,000 acres. They plead that the government held title to the canal property as trustee for the settlers on the Boise Project and that the canal was contributing seepage to the lowlands within the district. In view of these facts, it is contended that the rights of the respective water users to have water delivered them through this canal constituted easements which under the statute were subject to assessment for their proportionate part of the seepage.
While it is true that the right of each settler to receive water through a ditch constitutes an easement, this is not the easement subject to assessment as contemplated by the statute, C. S., sec. 4504, which requires that the assessment shall be set opposite the correct description of each tract, lot or easement; evidently having in mind a visible and tangible entity capable of being described by metes and bounds. This was recognized in Burt v. Farmers' Co-op. Irr. Co., 30 Idaho 752, 168 P. 1078, where the court directed the levy of drainage district assessments against the defendant's right of way. Said the court:
"The rights of way of respondents are easements, but are permanent in their nature and are of such character that their owners have exclusive and continuous possession and control thereof. New Mexico v. United States T. Co., 172 U.S. 171, 19 Sup. Ct. 128, 43 L. ed. 407. These rights of way are capable of description and may properly be called tracts of land. It was without doubt the intention of the law to provide that if by reason of carrying irrigation water through canals located on the rights of way described seepage water escaped from the rights of way and contributes to the water-logged condition of the land in the proposed drainage district, that these rights of way should be assessed their just proportion of the costs of construction of the drainage works the same as other high lands."
The right of way is the easement to be taxed under the statute, not the easement of the settlers incidental thereto. Since the United States government owned the right of way in question, no assessment could be levied against it; and there was no error in the court's excluding it from the district.
Assignments of error 3 and 4 may likewise be considered together. The lands of the Oregon Short Line were not excluded from the district. The findings and decree refer to them as within the district and the given boundaries include them, but the court specifically found that such lands did not contribute to the seepage, were not benefited and therefore were not subject to assessment. Upon what theory could they have been assessed? Counsel argues that under the doctrine announced in Oregon Short Line R. R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 P. 904, assessments should have been levied against the Short Line's right of way for the reason that it is benefited by the general enhancement of the adjacent lands. We are not in accord with the general rule so stated. It might well apply in a particular case, as where the land in its natural state might have shared in the general advance of adjacent values. This is indicated by the opinion relied on wherein it cites and partially italicizes an excerpt from Board of Directors v. Tregea, 88 Cal. 334, 26 P. 237, as follows:
" 'We construe the law to mean that the board may include in the boundaries of the district all lands which in their natural state would be benefited by irrigation and are susceptible of irrigation by one system, regardless of the fact that buildings or other structures may have been erected here and there upon small lots, which are thereby rendered unfit for cultivation at the same time that their value for other purposes may have been greatly enhanced.' "
The Short Line right of way being situated on lands extraordinarily high and dry above the land to be drained, and in no way contributing to the bogged condition, can receive no possible direct benefit from the contemplated drainage. To render it subject to assessment it must be brought within C. S., sec. 4504, which directing the commissioners provides:
"And if any particular part of the work so proposed to be done shall be assessed upon any particular tracts or lots of land or upon any municipality or corporation they shall so specify; and if any municipality or corporation should in their judgment bear a part of the expense or as such will derive a public or special benefit from the whole or any part of such proposed work, they shall so report and assess the amount of such benefits."
Construing this section, this court held in In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315:
"Under the provisions of that section the commissioners are given two grounds on which they may base assessments. First, against the land or any easement therein as such; second, against municipalities or corporations, on the theory that they may be especially benefited independent of any land owned or possessed."
Again commenting on this section, this court said in Burt v. Farmers' Co-op. Irr. Co., supra:
"We do not think that portion of subdivision 5 of section 9 of the drainage district act of 1913 relating to assessments upon municipalities or corporations applies to such a situation as we have here. The public and special benefits referred to there which must be assessed to municipal or other corporations, we understand has reference to such public benefits as draining of swamps adjacent to a city or village, or schoolhouse, or the drainage of public roads of a county, where the public or a portion thereof is especially benefited, as distinguished from a benefit to a tract of land. These assessments are not to be made as benefits to any tract of land, but are to be made upon the theory of public benefits, specially applicable to a municipality or corporation, for which it is proper that the municipality or corporation should be assessed, such assessment to be paid out of the general funds of such municipality or corporation."
In that case, the bogged condition was caused in great part by seepage from the defendant's canals; and the assessments were ordered levied against the right of way, the land itself, the court ignoring the view that the company received any benefit from the general drainage. The same principle should apply here where it is not shown that the public will be benefited generally. That the railroad company will receive an "especial" benefit imposes too great a strain upon the imagination. Considering the nature of the holdings within the tillable area, any increase in tonnage commensurate with assessments levied against the company is purely speculative, and the imposition of such assessments would amount to a discrimination or virtual confiscation.
The last specification points out no particular upon which alleged error is based and under repeated rulings of this court will not be considered.
Judgment affirmed. Costs to respondent.
Wm. E. Lee, C.J., and Budge and Taylor, JJ., concur.
Petition for rehearing denied.