Lincoln County times. (Jerome, Idaho) 1911-1919, 1913-06-26
Attorney HeiSt
On Foreclosures
He Defines his Position in the
Recent Idaho Irrigation
Co. Case.
(Shoshone Journal)

uldlll WHO are interested III the lc
gal rights of an Irrigation company
to fOreclose its lien for water fur
nished for Carey Act land, | shall
endeaVor to mention the elements
of the case not heretofore pub
ished which was recently argued |
on demurrer in Boise. as well as
the rules Of law announced by the
Court in which the case was tried. |
III might be we'll to mention that |
This is the only case OF this kind |
that has ever reached an adjudi- |
In the beginning | deem il highly |
proper 10 mention that Judge Davis |
gave this case exceptional atten- !
ton. and realizing the importance
of if. made an unusual effort in oh
tanning IFS full and complete sta
tus.
The complaint was the usual
form for foreclosure Of liens. Dhe
defendant contended, avoiding all
legal terms:
1. That the plaintiff could not
maintain its action until it had
completed fully its irrigation sys-
tenn.
.. Until the system had been
approved by the secretary Of the
interior.
Until the federal government had
issued patent 10 the state and no
lien could then attach for more
than the actual cost Of reclaimine
each subdivision OF land together
with reasonable interest thereon.
Tho federal law known as the
Carey Act authorizes the state
legislature 10 create a lien on
lands segregated. only for the sum
of the actual cost of appropriatlng
water upon each respective sub
division Of the land. together with
reasonable interest thereon.
The next question that presents
itself is when a lien is created.
! Section 1929. Revised Codes Of Ida
no. provides. among other things;
"1'he water rights TO all lands
,.nnired under the provisions OF
tins chapter shall attach to and
become appurtenant to the land as
soon as title passes from the United
states TO the state"
While the contention Of plaintlil
i that so soon as water is avail
ol,le il attaches n and becomes
ap,nirtenant 10 the land, instead
NJ reckoning from the time that
. naient shall issued from the United
- states 10 the state. in fact, 1t Is
an effort TO read into the statute
"A remedy that is not there. AS
understand the general principle
and intent Of our National con-
t. gross in passing the Carey Act Lane
law. If was the duty of the COM
, nanv TO complete its irrigation sys'
tenn and then sell the land. but CIV
- ing To the amount Of money whicf
x il took TO finance the same, th'
conpany has been permitted to sci
large amount VI AliiN if'A''f '''N'
collect certain payments before pat
emf issued. II was and is the con-
- tention of counsel for the defend
ant that the company cannot fore
: close against either the water O
=, me land until it has completed IL
u irrigation system in full for th'
recson that if The system was no
fully completed and approved unde
Tho federal statutes. it would be
come the duty Of the secretary o
+ The interior to cancel the contrac
" with the state, and the land woul'
then revert back to the federal gov
re eminent.
ct In This case the court held ina
n, the company had a lien upon tn
ds water appropriation TO the land, an
co,nd roreclose that lien. BY follow
inu this rule of law as laid down
and applying thereto. session S-,'
Revised Codes. which provide
among other things:
"All the waters OF the state. Whe
, flowing in their natural chah"eN
including the waters of all natur'
snrings and lakes within the boun,
arias Of the state are declared
- be the properties of the s'al'
i whose duty it shall he to superNis
their appropriation and allo,meI
! 10 those diverting the same there
= from for any beneficial purpos
e and the right to the use OF any
- the waters of the state for use
- full or beneficial purposes Is recoe
nizcd and confirmed; and the rig'
10 The use of any of the publ
waters which have heretofore pee
otl1ttaI .