Shoshone journal. [volume] (Shoshone, Idaho) 1884-1931, 1912-03-22
COMPANIES MUST
DELIVER WATER
SUPREME COURT HOLDS IRRIGA-
TIoNisrs LIABLE FOR DAM
AGES ON NON DELIVERY

According to the Statesman the su-
preme court of Idaho handed down a
decision Wednesday in the case Of
Virginia A. Hanes against the Idaho
Irrigation company. that when Carey
Act company enters into a contract to
provide water on the settlers land be-
ginning at a certain date, and the water
is not forthcoming at that time, that
the company IS Fable for damages sus-
tanned by the settler.
Applying, as it does. to all Carey act
companies, and all settlers on such pro-
jects in the state, the courts ruling is
regarded as one of the most important
rendered from that tribunal in months
The decision was fathered BY Justice
Sullivan and coneurred in by both Chief
Jutice Stewart and Justice Ailshie.
The court is explicit upon rulings in
the several different aspects OF the
case, which are briefed in the syllabus
as follows:
.sHeld that this is an action on con-
tract and not in tort.
Under the Carey land act of con-
gress and the statutes OF the state in
regard thereto, plan or scheme is
provided for the reclamation of desert
lands, and where a construction COM
pany has entered into a contract with
the sf3 tie to construct an irrigation
system for the reclamation OF certain
lands and has agreed to organize an
operating company TO which said system
and the water connected Herewith shall
be transferred to the operating COM
pany, to be held for the settlers upon
the lands included within said system,
and has also reserved the right to furn-
ish water TO settlers prior to the time
that said system is transferred to the
operating company, and the construction
company notifies the settler that it viii
furnish water for an irrigating season
beginning on the first of April, and the
settler prepares his land and purchases
fruit trees and sets them out On said
land and the company fails to furnish
water in accordance with it's contract.
it is liable for damages sustained by the
settler.
Under the provisions of the set
tiers contract. ii is provided that the
interest from April /, 1909, at 6 per
cent per annum, may be charged On
balance of purchase price If water is
available from the canals OF the COM
pany for use during the irrigation sea-
son of 1903, and if not available for
that season the interest shall commence
when water is available.
TT is provided in said settlers con-
tract that the state agreement and the
laws OF Idaho are made a part Of such
contract and they shall be regarded as
defining the rights of the respective
parties.
THAT provision of the state contract
which authorizes the irrigation COM
pany to charge and assess the purchas-
er Of water rights in said system not
to exceed 35c per acre per season for
each acre of land for which a water
right has been purchased for mainten-
ance purposes does not require the
purchaser of a water right to pay such
maintenance fee or charge until the
same has been fixed by the company.
Held, under the provisions of said
contract with the state that the con-
struction company had the absolute con-
troll Of the operating company at the
time the damages sued for in this action
occurred.
.sThe construction company under the
provisions of said contract with the
state was authorized to operate said
system prior to its being turned over
to the operating company Held, that
if it undertook to do so and failed
through its fault TO furnish water as re-
quired by said contract, it was liable
for damages to the settler in case he
sustained any
Under the provisions Of Section 1928.
revised codes. it is made the duty Of
a Carey Act irrigation company to no
thy the settler when water is ready for
delivery in order that the settler may
improve his land and make the reclama-
ton required in order to secure title
from, the state his land.
1T would be strange doctrine indeed
to hold that the settler would be oblig-
ed to pay interest upon the receipt Of
a notice that water would be ready on a
certain date and the company not be
obligated under the contract to deliver
him the water"
IF the irrigation company, being in
control and in possession of the system.
is not liable under the contract, no one
is"
Under the state of facts. the con-
tracts and the law, there can be but
one rational conclusion therefrom, and
that is if the settler was injured by
failure to deliver water. the irrigation
company is liable"
The court adds touch Of satire to
the decision when the double contention
by counsel for the irrigation company to
the effect that the trees involved were
dead when they were set out and also
that they were destroyed by rabbits is
referred to. as follows:
IF the trees were dead when planted.
the rabbits certainly did not kill them
The decision closes:
Finding no reversible error in the
record, the Judgment must be affirmed
and 1t is so ordered Costs Of this ap-
peal are awarded to the respondent.
Mrs. Hanes."
The above decision will place future
Carey Act projects on a better basis.