The herald., 1897-05-18
BIG ROCK CASE
Judge Shaw's Order for a New Trial
Affirmed

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A decision has been handed down by
the supreme court in the case Of F.
Boehmer. plaintiff and appellant. against
the Big Rock Creek Irrigation district
and the board of directors of the dis
trict.
The action was to quiet title to GER
tain water rights alleged to be appur-
tenant to certain Of plaintiffs lands as
riparian owner. The cause was heard
upon an agreed statement of facts and
the deposition of one witness. Written
findings were filed and judgment en-
tered. The defendants moved for new
trial. specifying three findings as not
justified by the evidence, and the plain
tiff appealed from the order graUing the
new trial.
Several interesting points Of law were
raised, and among other things it was
coEtended by appellant that the court
had no power to order new trial of its
own motion, the cause having been tried
by Judge Shaw without jury.
The order granting a new trial."
says the supreme court, "does not pro-
fess to have been granted solely upon
the courts own motion, and as the
grounds stated in the defendants mo-
tion fully justified the order, the point
made by appellant need not be consid-
ered."
LAS already seen," continues the
court, 1.-The fourth finding obviously in
tended to limit plaintiffs riparian
rights to those descriptions through
which the streams run: but this inten-
tion was defeated by the third finding.
and the Judgment having been entered
in accordance Herewith, the result is
that all Of plaintiffs tracts of land de-
scribed in the complaint are adjudged to
be riparian, except two quarter sections
constituting the north nalf of section
in township L. range west, and there
is nothing in the findings to show that
these parcels are differently situated.
"The facts stipulated are that all the
lands described in the complaint, ex-
cept the northeast quarter of section Z,
township north, range 9 west, and two
quarter sections in range 10, were pat
ented by the United States to William
S. Chapman on June 1, 1870, by fourteen
separate patents, based on fourteen diff
ferent entries, and that plaintiff is the
owner Of each OF these fourteen quarter
sections by mesne conveyances under
Sdlu william .. chapman.
with the exception Of lands within
confirmed Mexican grants, the Virginia
military reservation, and perhaps some
other tions granted nearly days.
it has been the policy of the general
government to subdivide the public do
main into small tracts and to dispose
of them as such, and for the purpose of
carrying out sucn policy restricted the
right of entry under the homestead and
presumption laws to 100 acres Even
in it's grants to railroads, by granting
alternate sections, it prevented the ac-
QUESTION from the government of large
bodies of contiguous lands, and a SIM
liar policy is pursued by the. state in
disposing of state lands
1T is alleged in the answer that said
irrigation district is a municipal cor
poration, and is not subject to be
sued i'll this action, and we are asked
by respondent to adjudicate that ques-
ton.
1T is true, as appellant suggests, that
1t cannot be considered as affecting the
order appealed from; but as that order
must be again affirmed, and the ques-
ton must again arise, unless abandoned
by the defendant corporation, it should
be disposed of now, so as to avoid an
other appeal
We, are not referred to any case where
this question has been raised or decided.
The fact that it has not been before
made. while by no means conclusive, is
suggestive of the construction given to
the statute by the bar. 1t is conceded
that the state and it's public agencies
cannot be sued without express author
ity from the state itself, and that, as
held in the matter of the bonds of the
MADEIRA irrigation district, "An irriga-
tion district organized under the Wright
act becomes public corporation, and its
officers become public officers of the
state"
Perhaps a general statute authorizing
individuals or private corporations to
sue or be sued would not be construed to
include municipal corporations; but
where, as here, the statute in question
relates directly and exclusively to cor
porations formed under 1t, that part re-