The Twin Falls times. [volume] (Twin Falls, Idaho) 1905-1916, 1912-03-19
CANAL co. MUST
DELIVER WATER
Chief Justice Stewart Writes
Dissenting Opinion.
TWIN FALLS CANAL COMPANY
MUST OBSERVE CONTRACT.

Writ of Mandate Order Sustained In
Case Over Water Rights on State
Lands.
The terms of contract between
the State of Idaho and the Twin Falls
Land & Water company and the Twin
Falls canal company, are binding
and the irrigation company is there
fore bound to deliver water to state
land, whether school sections 16 OF
36 or not, included within the pro-
ject promoted by the company. This
is the ruling of the supreme court in
an opinion handed down today where
in it refuses to recede from it's form
er position and orders a writ of man
date to issue from the court directed
against the Twin Falls Canal COM
pany as applied for by H. 7. West
the opinion is written by Justice
Allshie, concurred in by Justice Sui
livan and dissented to by Chief JUS
tice Stewart. 1t is sweeping victory
for the state and the attorney gener-
ais office, and throws a protection
around purchasers of state lands in
Cluded within Carey act projects.
West applied for a writ of mandate
to the supreme court last spring, to
compel the Twin Falls company to
deliver water to state land he had
purchased, and which was included
within the project. The irrigation
company had refused to deliver the
water. A decision handed down by
the supreme court later and written
by Justice Sullivan allowed the writ.
The water company later came In
and asked that the case be given a
re-hearing in order that the facts
could be heard by a full bench. The
state, through the attorney generals s
department, became interested in the
action on behalf of West as state land
was involved. The decision today is
on the same issue, or the write of
mandate, and it re-affirms the form
er opinion of the court.
The fact that the state of Idaho has
in many Irrigation projects in this
state, especially Carey act, state
lands Including school sections 16
and So, made the isue of paramount
Importance for il the court should so
hold an irrigation company to irri-
gate these lands should be held as
void. state lands would therefore be-
come valueless, due to the fact water
would not necessarily have to be de.
livercd to them and purchasers
would be without water right. The
supreme court opinion sets this mat
ter at rest for 1t holds that in the
tests case Of West he Is entitled to
water fer the state land he purchased
and all other similar purchasers and
all other similar purchasers OF state
land on projects where the state,
through its land board, has made the
promoting company.
Justice Ailshie's opinion is short,
but that of the dissenting opinion OF
Chief Justice Stewart is long one,
reviewing as it does the facts in the
case and placing his construction on
the law and the contract.
1t is held by the supreme court
opinion that the contract the state
has with the Twin Falls Canal COM
panys calls for 5000 second-feet of
water for sections 16 and 36 and such
other lands OF the state and that pur-
chasers of state land should be al
lowed to purchase water rights at $40
lessthan those who take up govern
ment land under the project.
Justice Ailshie says: THE Twin
Falls Canal company was organized
under and in conformity with pro-
sisions of the contract between the
Gate and the Twin Falls Land &
Water company and is charged with
the terms and conditions of that con-
tract in so far as they provide for
the sale of water rights.
"The Twin Falls Canal company
having received and taken over the
system and assumed the duty and OBJ
legation of operating the same and
selling water rights, cannot in this
proceeding, raise any question as to
the failure Of the construction COM
pany to comply with the contract in
the manner of constructing the works
and system or furnishing sufficient
water to comply with the contract"
Chief Justice Stewart dissents in a
lengthy opinion. concluding with the
statement that he believed the court
should hear the entire case on the
facts as they exist. He says in open
ing his opinion:
II am unable to concur with the
majority opinion in either the conclu-
sion or the reasons upon which such
conclusion Is based. From a careful
examination of the pleadings in this
case and the entire record, am salts
fled that my associates have reached
their conclusions upon q wrong
theory of the pleadings and by over
looking and disregarding the plain
provisions OF the contract.
THE real controversy in this case
Is, whether a water right. purchased
by settler upon land under the con-