The Parma herald. (Parma, Idaho) 1903-1917, 1904-08-06
DEFENDANT WINS.
So Decides Judge Stewart in
the Case of P. P. Shelby
VS.. Farmers Cooperative
Ditch Company.


the irrigation season OF 1902 the COM e'
panv furnished Mr.. shelby statement a
showing the cost Of maintaining and OPP P
Grating the ditch, and Mr.. Shelby's pro- t
portionate share OF the same. This Mr.. v
shelby refused to pay, claiming that the I
attorneys fees and expenses OF the liti- I
CATION then pending in the courts were I
not properly items Of expense to be
charged to water users. The company
threatened to shut off his water for the
season Of 1908 unless the amount was
paid, and Mr. Shelby then asked the
courts ior an injunction to restrain the
company from such action tempo
rary injunction was granted, and the
case went to trial. In the decision
Judge Stewart denies the injunction, de-
Gliding for the ditch company on every
material point, A few small items,
amounting in the aggregate to sl4lO1,
were held to be not properly chargeable
to water users, and were deducted from
the amount of expense as shown by the
company's statement, reducing the
total cost from s4487. .75 to $43266S, and
on this amount the company was given
Judgment against Mr.. Shelby for his pro-
portionate liability, amounting to S2O9.-
80.
Following is portion Of the opinion
rendered by Judge Stewart;
''The plaintiff in this action contends,
First. That the defendant has nc
power or authority by rules or regula-
tions Of the said defendant company, OF
otherwise, to shut off the water owned
by the plaintiff under his said deed anc
contends further that whatever obliga
tions the plaintiff may be under, as t.
paying his proportionate share OF opera
ting and maintaining said ditch, tina
such obligation was one of debt only
and could be recovered 10y the defendan
from the plaintiff only by an action 70
- that purpose.
a. Second. The plaintiff contends tha
the statement rendered to the plainti
,is by the defendant, embraces many iten
i've which are not properly chargeable
80 maintaining and operating expenses
yes said ditch
on 1t will be observed that the plaint
received his title to said 800 inches
. water upon the condition that he shou
"a pay his proportionate amount OF the a
y nual expenses Of maintaining an% OPP
ating said ditch, and that the use
n said water was subject to the rules a
3 regulations Of the grantor company. J
z fore this action was commenced
= plaintiff WAS fully advised by the detei
q ant company that unless he paid his P
portionate share Of the expenses
maintaining and operating said ditch
n the preceding year~-to-wit lSO2-tl
the defendant would shut off and ref
to deliver the water owned by the pla
tiff. The conveyance of the granto
plaintiff to plaintiff, was made un
the express agreement that the gran
might make rules and regulations
the delivery and use OF said water.
defendant in this action, succeeding
the interests Of the grantor of plain
has power TO make reasonable reg
tions governing the use of the conzun
of watrr under said ditch. A rule
regulation that unless the consumer
| water under said ditch pay their
portionate share OF the expenses in m
tanning and operating said ditch,
the defendant company will refuse
decline 10 furnish water 70 said
suner and shut off said supply
In my judgment, not an unreasonab
Il Unfair regulation, and i necessary I
IA der 10 enable the defendant to mali
In and operate -aid ditch If the de'
! ant were required in all cases wher
consumer refused TO pay his proper
- ate share Of the maintaining and
| ating expenses Of the ditch to res'
an action at law to recover the sam'
ditional expenses would necessarily
to be incurred, and the defendant
pany would be in position Il
would be unable to maintain its
said ditch.
~ The particular items contended
m, rlainliff, for which he is liable
az the nature Of attorneys fees.
-. reared from the evidence in thi
sss sss that litigation was instituted for tn
Vs pose OF determining the priority
a@ ter rights along Boise river, from
the ditch in controversy IA this cast
its water. Such action was necess'