Lincoln County times. (Jerome, Idaho) 1911-1919, 1913-06-05
A New Ruling Made
Regarding Carey Act Lands
Judge Davis Of Boise, Declares that the
Water Rights and the Land are
Separate and Distinct
Case is Of Vital Interest to all Carey
Act Settlers.

'
Act lands, was rendered by Judge
Davis at Boise last week, in the
case OF the Idaho Irrigation Co. VI.
{. W. Dill, which was transferred |
from Judge Walters court OF this
county, for the reason that the
Judge, holding land in the district,
was disqualified to hear the case.
The case was one in which the Irri-
CATION company sought to foreclose
on the holdings of Dill to recover
the purchase price Of water rights
on the project. Attorney Harlan
ID. Hest Of this county appeared a
attorney for the defendant, and it
was his contention that no fore
closure for non payment Of water
rents could issue before the company
had finally and actually completed
its irrigation system. The case
l. reported a. follows in the States
man:
One of the vital points brought
out in the decision rendered by
Judge Davis i that IA lien may be
enforced under the law against the
water right wholly independent OF
the land that the two are separate
and distinct, prior to the issue of a
patent by the federal government to
the holder OF the land. Both the
land and the water right are re-
garded a. real estate; the land may
he owned by one person and the
water right by another.
Judge Davis holds that the watel
right used on Carey act lands may
be severed from the lands and ;
lien may be effective ON the waite
right and he subject to foreclosure
prior to the patent OF the land, evel
though no lien would attach to tn
land.
I'm this case the Idaho Irrigation
company alleges the existence q
= contracts with the state a. author
lied hy the Carey act and the law
of the state under which the com
pany agreed to construct irrigatio
! works in Blaine and Lincoln cour
O. ties.
1T is alleged further that til
=, company and Dill entered into a
agreement under which the compan
was to furnish water for the irrig'
ton of Dill'S land at fixed prize
to he paid in installments. tt
company alleges still further that
- complied with the terms of lis col
. tract and that Dill failed and r
fused to pay certain sums overd'
- on the purchase price OF the wat
right.
"To this complaint Din demurr'
and raised the point that as t
title to the land was still in t
l. United States, that the federal go
i, ernment should he made a party
-, the suit.
, In support of the demurrer
-. was contended that no lien cou
- attach to the land or water right
a settler ON a Carey act project un
the irrigation works are complet
n. i'm all respects. Dill maintain
O, that the work must be completed
of all its parts and patent To the la
nd issued 10y the United States to
he state.
le- "On the other hand the irrigat
company cmtended that the fede
2S and state laws contemplate 4
~ there shall be lien on the Ii
,te and the water right in favor of
nut company as soon as the work
re. started to enable the company
ZEN complete its work and meet bo
"a and other obligations.
.he Judge Davis quotes liher;
in from the law and reaches the c
m clusion that lien may attach
nd the water right in the case in
ted pendent of the land He says
ty. facts in the case are sufficient to