Idaho-Iowa Lateral & Reservoir Co. v. Fisher , 27 Idaho 695 ( 1915 )

SULLIVAN, C. J.

— This action was brought by the plaintiff, a corporation, to quiet its title to 2.86 acres of the SE. % of the NE. % of sec. 36, Twp. 3 N., Range 1, W. B. M., Ada county, excepting a certain part thereof which is described in the complaint by metes and bounds.

An answer and cross-complaint were filed by the defendant. The answer denied that plaintiff had any right, title or interest whatever in said land, and in the cross-complaint the defendant alleged that he was the owner of said land and entitled t'o the possession thereof.

Upon the issues thus made the cause was tried by the court without a jury and judgment was entered quieting the title to said land in the defendant. This appeal is from the judgment.

The following facts appear from the record:

The plaintiff is an irrigation company and filed on the land in question as a reservoir site under the provisions of an act of the legislature approved March 18, 1901 (Sess. Laws 1901, p. 191). By sec. 8 of said act it was provided that any person or persons desiring to construct a ditch, canal or reservoir would be allowed a right of way by filing in the office of the state engineer a map showing the location of the land desired for such purpose, without paying any compensation therefor. Plaintiff’s filing for said land was made on Séptember 21, 1903, and the plans for the construction of the proposed reservoir of the plaintiff provide for the construction of three dams, one main dam and two minor ones. The main dam was constructed within five years after the date of filing by plaintiff and one of the minor dams was constructed some nine years after said filing, and the other minor dam has never been constructed.

The defendant’s predecessor in interest purchased said land, together with other lands, from the state of Idaho on September 16, 1912, and the court in its finding of facts found that the plaintiff, the reservoir company, did not make application to the state board of land commissioners for the sale of said land; that no appraisal of said land was made, and that the land was not advertised or sold at public auction, and that plaintiff paid no consideration therefor to the state, and that the only things done by the plaintiff to procure the right to the use of said land was the filing of the map, plans and field-notes in the office of the state engineer and the construction work above mentioned.

The court also found that said land described in paragraph 2 of plaintiff’s complaint was the identical land proposed to be taken by plaintiff for reservoir purposes and was necessary for the construction of said reservoirs and dams, and after the construction of the main dam said land was necessarily overflowed; that the defendant’s predecessor in interest purchased said land together with other lands from the state on September 26, 1912, at public auction, after due notice had been given and proper proceedings had for the sale of said land, and that he paid therefor a sum exceeding ten dollars per acre, and as a conclusion of law the court found that the defendant was the owner and entitled to the possession of said land under a valid certificate of sale from the state of Idaho.

Counsel specifies as error the action of the court in holding that the defendant was the owner and entitled to the possession of said land, and in entering a decree to that effect.

The plaintiff claims title to, or at least an easement in, said land, because of its compliance with the provisions of House Bill 134, Laws 1901, p. 199, which act was thereafter amended in 1907 (Sess. Laws 1907, p. 527), and thereafter became sec. 1635, Bev. Codes of 1909. Said act of 1901 was amendatory of acts approved respectively March 2 and 6, 1899 (Sess. Laws 1899, pp. 282 and 408).

See. 8 of said act of 1901, under which the plaintiff sought to obtain said land for reservoir purposes, is as follows:

“Any person or persons desiring to construct a ditch, canal, reservoirs or other works for carrying or distributing the public waters for any beneficial use over or upon any of the lands owned or controlled by the state of Idaho, shall be allowed the right of way for the same by filing in the office of the state engineer a map showing the location of such land by an accurate survey of such ditch, canal, reservoir or other irrigation works. Such map shall be drawn on tracing linen on a scale of not less than 1,000 feet to the inch, and shall be ‘accompanied by the field-notes of such survey of such irrigation works.

“In the case of a reservoir, the map shall show, by contour lines at intervals not greater than ten feet, the topographic features of such reservoir site, and shall state the capacity of such proposed reservoir in acre feet; and when the dam or embankment of such reservoir shall be more than ten feet in height, plans showing the construction of such dam or embankment shall be filed in the office of said state engineer as provided by law. All such maps, plans and field-notes shall be certified by the engineer under whose direction such surveys and plans were made. If such map or description is defective or incomplete, the state engineer may order the same to be corrected before the same shall be filed in his office: Provided, that the works for which the right of way is herein granted must be completed within the time mentioned in the application for the same (which shall accompany such map) which shall in no case be more than five years from the time of filing such application and map; and the construction of the works herein mentioned must be commenced within one year after such application and map are filed, and be prosecuted to completion diligently and uninterruptedly on a scale reasonably commensurate with the magnitude of the proposed works, in order to obtain the right of way under this section.”

Plaintiff commenced proceedings under said act on September 21, 1903, to obtain the right to said land for reservoir purposes. In 1907, said see. 8 was amended, but the only-material change made was that of requiring compensation or at least $10 per acre for land desired as a reservoir site, while under the act of 1901 the necessary estate in said land required for reservoir purposes was granted by the state without compensation.

The points presented for decision are: (1) Could the plaintiff obtain title or the necessary estate or easement in said land for reservoir purposes by compliance with said law of 1901, and if so, (2) did the plaintiff comply with the provisions of said act?

It is contended that the proviso contained in sec. 8, art. 9 of the state constitution, to wit, “No school lands shall be sold for less than ten dollars per acre,” and such sale must be made at public auction, applies only to the divesting of the entire or fee-simple title of the state thereto, and that any estate in school lands less than a fee simple is not included in that constitutional provision; that sec. 14, art. 1 of the state constitution which grants the right of eminent domain, cannot apply to school lands if the constitutional provision of sec. 8, art. 9, includes rights of way, easements and other estates less than the fee-simple estates.

Sec. 8, art. 9 of- the state constitution is as follows:

“It shall be the duty of the state board of land commissioners to provide for the location, protection, sale or rental of all the lands heretofore, or which may hereafter be granted to the state by the general government, under such regulations as may be prescribed by Law, and in such manner as will secure the maximum possible amount therefor; Provided, that no school lands shall be sold for less than ten (10) dollars per acre. No law shall ever be passed by the legislature granting any privileges to persons who may have settled upon any such public lands, subsequent to the survey thereof by the general government, by which the amount to be derived by the sale or other disposition of such lands, shall be diminished, directly or indirectly. The legislature shall at the earliest practicable period, provide by law that the general grants of land made by Congress to the state, shall be judiciously located and carefully preserved and held in trust, subject to disposal at public auction for the use and benefit of the respective objects for which said grants of lands were made, and the legislature shall provide for the sale of said lands from time to time and for the sale of timber on all state lands and for the faithful application of the proceeds thereof in accordance with the terms of said grants; Provided, that not to exceed twenty-five sections of school lands shall be sold in any one year, and to be sold in subdivisions of not to exceed one hundred and sixty (160) acres to any one individual, company or corporation.”

Sec. 14, art. 1, is as follows:

“The necessary use of lands for the construction of reservoirs, or storage basins, for the purpose of irrigation, or for rights of way for the construction of canals, ditches, flumes or pipes, to convey water to the place of use for any useful, beneficial or necessary purpose, or for drainage; or for the drainage of mines, or the working thereof, by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps or other necessary means to their complete development, or any other use necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants, is hereby declared to be a public use, and subject to the regulation and control of the state.

“Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor.”

The provisions of said two sections must be construed to harmonize. Said sec. 8 prescribes the price and manner of sale of state lands; sec. 14 confirms the right of eminent domain. A conflict must necessarily result between the provisions of said sections if sec. 8 is construed to include the particular title or estate in land which, under section 14, is subject to the control of the state for a public use. If the provisions of said section 8 fixing the price and prescribing the manner of sale of state lands refer. to easements and rights of way and prohibit the granting of such easements or rights of way for a price less than ten dollars an acre, and then only at public auction, can it be said that the provision of said section 14 giving the state control of such lands for public uses is not violated when the subjection of such lands to a public use is sought ?

To exercise the right of eminent domain involves a judicial proceeding, and if after the court has determined the right to condemn, the land must be put up at public auction and sold for not less than ten dollars an acre, the condemnors would be placed in the position of not only having to pay the value of the land found by the court, but also must overbid at public auction anyone who might bid for said lands. The law of eminent domain only contemplates that the condemnor shall pay the price for the land fixed by the court, and he is not required to attend an auction sale where such land is put up at public vendue. For instance, if a person or company desires to establish a reservoir for impounding water for the reclamation of lands and the land suitable for such reservoir must be purchased at public auction, speculators by bidding on such land might greatly retard the development of the country.

Under the provisions of said sec. 14, it is provided that the necessary use of lands for the construction of reservoirs is declared to be a public use subject to the regulation and control of the state.

Under an act of Congress of July 26, 1866, 14 Stats, at L., p. 261, which was re-enacted in Rev. Stats, of the U. S. in sec. 2339 and somewhat amended but the meaning thereof not changed by such amendment, the right of way for the construction of ditches and canals over the public domain is acknowledged aud confirmed. Congress recognized the fact that the rights of way for ditches, reservoirs and canals in the arid states and territories of the west were absolutely essential for the development of those states and territories, and while the act of Congress admitting Idaho into the Union provides that none of the lands granted by said act to the state should be sold except at public sale and for not less than ten dollars an acre, it was not intended that such act should be construed to be in contravention of the wise policy adopted by Congress by the act of 1866, and prevent the irrigation and reclamation of the arid lands of the state.

It is clear that the granting of a right of way for a ditch, canal or reservoir under the provisions of see. 14, art. 1 of the state constitution is not a sale or disposal of the land such as is contemplated by said admission act, but simply the granting of an easement, the legal title to the land remaining in the state.

Sec. 5211, Rev. Codes, which is found in the chapter on eminent domain, provides as follows:

“The following is a classification of the estates and rights in lands subject to be taken for public use:

“1. A fee simple, when taken for public buildings or grounds, or for permanent buildings, for reservoirs and dams and permanent flooding occasioned thereby, or for an outlet for a flow, or a place for the deposit of debris or tailings of a mine;

‘ ‘ 2. An easement, when taken for any other use;

“3. The right of entry upon, and occupation of, lands, and the right to take therefrom such earth, gravel, stones, trees and timber as may be necessary for some public use.”

This section was adopted in 1881, nine years or more prior to the adoption of our constitution. It classifies the estates and rights in land subject to be taken for a public use, and provides that a fee-simple title may be taken in the land for reservoirs and dams and permanent flooding occasioned thereby. But under the provisions of the constitution which clearly contemplate the subjection of state lands to certain public uses, the title in fee does not pass to the condemnor under eminent domain or other proceedings provided by the legislature for the subjection of state lands to public usas. It was intended in such classification not to have the compensation to be paid for land for reservoir or dam purposes reduced simply because an easement was taken or given rather than the fee-simple title, since it might be a perpetual easement or only temporary. If the land was abandoned and not used for the purposes for which it was condemned, the land was relieved of such easement and the owner of the fee would become entitled to the full possession thereof.

If it be held under the provisions of sec. 8, art. 9 of the constitution that state lands under condemnation proceedings must not be sold for less than ten dollars an acre, must it not also be held that state lands for that purpose must be sold at public auction? Shall this court construe that, in taking state lands for a public use, one of said provisions is binding and the other not? By holding that said provisions of sec. 8 are applicable when the state parts with the fee and not where it grants an easement, the sections of the constitution in regard to the sale of school lands and of eminent domain can be made effective and harmonious, and the material development of the state not hampered or retarded in the reclamation of the land belonging to the state as well as other desert land within the state.

In Hollister v. State, 9 Ida. 8, 71 Pac. 541, the court said:

“When Idaho became a state, it at once necessarily assumed the power of eminent domain, one of the inalienable rights of sovereignty; and that right, we take it, may be exercised over all property within its jurisdiction. [Numerous authorities are here cited.] But even if Congress had the authority in granting these lands to the state, to restrict and prohibit the state in the exercise of the power of eminent domain, we do not think it was intended or attempted in the admission act. It was evidently the purpose of Congress in granting sections 16 and 36 in each township to the state for school purposes to provide that the revenue and income from all such lands should go to the school fund, and that when sold it should be at the highest market price. We cannot believe that Congress meant to admit into the Union a new state, and by that very act throttle the purposes and objects of statehood by placing a prohibition on its internal improvements. To prohibit the state the right of eminent domain over all the school lands granted would lock the wheels of progress, drive capital from our borders, and in many instances necessitate settlers who have taken homes in the arid portions of the state seeking a livelihood elsewhere. ’ ’

As a matter of history considerable land in the state of Idaho that has heretofore been reserved for reservoir purposes has already been abandoned, and that will be the case, no doubt, in regard to some of the lands now used as reservoirs. It is clear that where the right of eminent domain is exercised with reference to state lands, if it be held that a title less than fee simple is to be conveyed by such proceedings, and if at the same time the constitutional prohibition against sales other than at public auction at a minimum price of ten dollars per acre be construed to apply only where a fee-simple title is to be conveyed, then the two sections (sec. 14, art. 1, and see. 8, art. 9) are reconciled, and both are made effective. It -was not intended that a fee-simple title must be taken in case land is condemned for a reservoir, and in the case of condemnation of state lands it was clearly not intended that a fee-simple title should be taken to land for that purpose. If it were intended by the provisions of section 5211 to compel the condemnor to take the fee-simple title to land desired for a reservoir, it is clearly repugnant to the provisions of the constitution so far as reservoir, dam sites, etc., are concerned when applied to state lands.

See. 14, art. 1, of the constitution does not provide that the fee-simple title for state lands used as reservoirs must be taken, but does provide that “The necessary use of lands for the construction of reservoirs” shall be “subject to the regulation and control of the state,” meaning thereby that such matters shall be controlled by the legislature of the state by legislative enactment.

It was held in Imperial Irr. Co. v. Jayne, 104 Tex. 395, Ann. Cas. 1914B, 322, 138 S. W. 575, that the legislature had the power to exercise the right of eminent domain confided to it by the people and forever reserved to it by implication, and for a public use might grant an easement on any of the state’s lands for rights of way for railroads, telegraphs and telephone companies and for dams and reservoir sites, and held that the power was inherent in the sovereign government, and that the exercise of that power did not deprive the legislature of its authority to sell the land on which such easements were granted, for the title in fee did not pass by the grant of the easement, and said: “The construction of the constitution here given is wholly in aid of the power of the legislature to sell the public school lands for the best price and to the best advantage, and in no maimer recognizes the authority to divert or misappropriate any portion of that fund.” While there is a distinction between the laws of Texas and the laws of Idaho, the distinction is one of form rather than of substance, and the general rule laid down there is applicable in this case.

The legislature in this state in dealing with the procedure for the taking of state lands for a public use may provide that such procedure may be taken in certain designated courts, or it may provide that the procedure of taking lands for public use may be had outside of the courts in the first instance. The procedure which the legislature may adopt is not necessarily limited to the courts, since the right of eminent domain is an inalienable right of sovereignty; and the legislature has the power to provide the way in which or by which this right may be exercised. Under our law, when land is taken for a public highway, appraisers are appointed to appraise the value of the land sought to be taken and no court procedure is required, and the legislature may provide any reasonable method whereby the rights of the parties will be protected in the exercise of the right of eminent domain.

The discussions which occurred in the Constitutional Convention dealing with school lands throw considerable light upon the proper construction to be placed upon said section and will be found in vol. 1, Idaho Const. Convention, pp. 649-669, 703-712, 730-765, 849, and vol. 2, p. 1450; and the discussion affecting sec. 14, art. 1, will be found in vol. 1, pp. 288-367, and vol. 2, pp. 1596-1602, 1606^-1633.

The discussions in regard to said section 14 clearly indicate that the leading members of the Constitutional Convention had in mind the granting of easements for the purposes referred to in said section, and during the discussion the word “easement” was used a number of times, which indicates that the fee-simple title to lands taken for a public use was not in contemplation by the framers of said section 14. The first sentence of said section clearly indicates that easements were considered rather than the fee-simple title to the land. The sentence begins: ‘ ‘ The necessary use of lands for the construction of reservoirs, ’ ’ etc., and at page 1619, vol. 2, Idaho Const. Convention, Judge Claggett, referring to the word “use” as used in said section, stated as follows: “If you were to strike out ‘ use, ’ by the way, from this section and put in ‘ easement, ’ it would be precisely the same thing in principle and in effect. ’ ’ And again, referring to said section, in vol. 1, p. 311, he said: “I think so far as the substitute is concerned, that that substitute can be amended in such a way as to provide for easements upon lands for those purposes, and leave the lands alone and let the title rest in them. An easement that will carry water over a party’s land, an easement to build a ditch across a man’s claim, an easement to go over a man’s claim when necessary — all of which would be provided by the legislature, under the safeguards there put in — or a temporary possession for the purpose of sinking a shaft or running a tunnel — these things are absolutely necessary to be done, and I think the language of the substitute should be modified so as to cover any matters of this kind, to cover these matters of easement.”

At least so far as some members of the convention were concerned, the rights sought to be granted by the provisions of sec. 14, art. 1 of the constitution were easements and not fee-simple titles, and it was intended that the just compensation for those easements must be paid, and if thereafter such lands were abandoned or ceased to be used for the purposes for which they were condemned, the title would remain where the law would leave it, in the owner of the fee, regardless of such condemnation proceedings.

While the writer of this opinion in his dissenting opinion in the case of Hollister v. State, 9 Ida. 651, 77 Pac. 339, took the position that a fee-simple title was taken of the land upon which the dam in that case was erected, upon further investigation of the matter I am satisfied that, under the provisions of sec. 14, art. 1 of the constitution, only the necessary use of land for reservoir or dam purposes is taken, which may result in the perpetual use of such lands for that purpose, or only a temporary use, and the title in fee to the land remains in the state. In the case of Tobey v. Bridgewood, 22 Ida. 566, 127 Pac. 178, it was held that an inhibition is placed upon the legislature in enacting a law which provides for the disposition of lands granted to the state by an act of Congress for less than ten dollars per acre, and that such sale shall be at public auction. The court in that decision proceeded upon the theory that the fee-simple title was taken or disposed of by the state for the public use therein mentioned; and the doctrine therein laid down that is contrary to the views expressed in this opinion is hereby expressly overruled.

We, therefore, conclude that the plaintiff obtained an easement in the land in question for reservoir purposes by compliance with the act of 1901.

The judgment of the trial court is therefore reversed and the cause remanded, with instructions to make finding of facts and enter judgment in favor of the plaintiff quieting its right to an easement for reservoir and dam purposes to the land involved in this case. Costs are awarded to the appellant.