Bardsly v. Boise Irrigation & Land Co. , 8 Idaho 155 ( 1901 )

SDLLIYAN, J.

— This action was brought by the appellant to obtain a decree confirming his right to receive nine-tenths of one cubic foot of water per second of time from that certain canal known as the “Eidenbaugh Canal,” and owned by the respondent corporation, during the season of 1901, for the irrigagation of certain land owned by appellant, and described in the complaint, and to enjoin the respondent from preventing appellant from receiving said amount of water, and to enjoin and restrain respondent from refusing to receive and number in its numerical order appellant’s application for such water. The pleader sought to set forth two causes of action in the complaint, and the prayer is an unusual one. The first alleged •cause of action alleges that the respondent is a corporation, and owns, controls, and operates said canal; that water is carried through the canal to consumers for the purpose of irrigating lands thereunder. The capacity of the canal is alleged, as well as the sufficiency of the supply of water; that appellant owns certain land under said canal, requiring irrigation; and that respondent refused, and still refuses, to accept the application of ■appellant for water for said land. The second alleged cause of action avers some additional facts, but for the purposes of this opinion it is not necessary to set them forth here. The action was begun March 21, 1901. A demurrer was filed to the complaint on the ground that the same did not state a cause of action, and that the complaint disclosed that the appellant had a plain, speedy, and adequate remedy at law. The demurrer was sustained, and the appellant elected to stand, on his complaint, and judgment of dismissal was entered. This appeal is. from the judgment.

Appellant assigns the order of the court sustaining the demurrer as error. Does the complaint state a cause of action ? It alleges that plaintiff owns land under said canal that requires irrigation; that there is sufficient water in the canal, over and above the amount used by others, to supply plaintiff’s needs; that on the twenty-fourth day of December, 1900, plaintiff duly made application to the respondent for the amount of water above stated for the purpose of irrigating his said land for the year 1901, and that he “offered to secure the payment of the same”; that respondent refused, and still refuses, to accept said application, and refused, and still refuses, to contract with appellant for said water. The allegations of the complaint are proper, so far as they go, but they stop short of stating a cause of action. Under our statute, not only a proper demand must be made, but reasonable compensation must be tendered therefor, or reasonable security given for the payment thereof. Section 19, page 382, of the Session Laws of 1899, which reads as follows: “Any person, company or corporation owning or controlling any canal or irrigation works for the distribution of water under a sale or rental thereof shall furnish water to any person or persons owning or controlling any land under such canal or irrigation works for the purpose of irrigating such land, or for domestic purposes, upon a proper demand being made and reasonable security being given for the payment thereof; provided, that no person, company or corporation shall contract to deliver more water than such person, company or corporation has a title to by reason of having complied with the laws in regard to the appropriation of the public waters of this state.” The mere allegation that appellant offered to secure the payment of the same is not sufficient. The complaint does not allege that appellant is ready and willing to pay a reasonable compensation for the water, or that he is ready and willing to give reasonable security for the payment of the same. The appellant, under the provisions of section 20 of said act, might notify the canal company that he would want water from said canal for the irrigation of his land during the succeeding season, and thus preserve a prior right against subsequent applicants; but before he could maintain a suit he must show that he not only had offered to, but was then ready and willing to, give the canal company reasonable security for the payment of the water rent. He must pay reasonable compensation for the water, or give reasonable security therefor, before the canal company can be compelled to deliver him water. One clause of the prayer of the complaint is that the plaintiff be enjoined from preventing Mm from receiving and taking water from said canal. By the allegations of the complaint the appellant has not brought himself witMn the provisions of the act approved February 25, 1899 (Sess. Laws 1899, p. 380). The appellant has mistaken his remedy. When an applicant for the use of water has complied with the provisions of said act, and the canal company has sufficient water to supply the same without depriving prior users of their rights, and refuses to do so, on proper application to the court, the company would, by writ of mandate, be compelled to deliver such water. But the complaint fails to state facts sufficient to entitle the appellant to the relief demanded, or to any relief whatever, and therefore fails to state a cause of action.

(January 25, 1902.)

The judgment is affirmed, with costs in favor of respondent.

Quarles, C. J., and Stoekslager, J., concur.