Shoshone journal. [volume] (Shoshone, Idaho) 1884-1931, 1913-06-06
DECISION GIVEN
BY JUDGE DAVIS
IS FAR REACHING
Lincoln County Boy win Not Get
The $1,000 Awarded Him In
Verdict of the Jury.


inasmuch as it entirely upsets tn,
theory upon which all contracts be
tween irrigation companies unde
such projects have made with IT,
state and settlers.
The case is that Of Idaho Irriga-
ton comptny against Charles VII
liam Dill, of ShOshone. 1t is one
where the irrigation company
sought to foreclose its lien granted
under the laws of this state against
Dr.. Dill because of the nOn-paymen
of deferred payments due on the
purchase price of a water right
from the plaintiff company. II
IS a case arising in the Fourth ju-
dicial district but tried by Judge
Davis Of this district.
Government is Interested.
Judge Davis holds that before
foreclosure upon the land can be
had the United States must be
made party defendant to the suit.
lnasmuch as the title to the land
still vests in the government until
patent issue to the state and the
irrigation works are completed. but
that even then foreclosure cannot
lie for deferred payments beyond
the actual cost Of furnishing water
and retaining the land, plus a rea-
sonable interest on the money. but
not for any profits that the irriga-
ton company may have made by
reason Of such reclamation. This
does not prevent foreclosure. the
court holds. upon the water right
itself. but the important point to
the irrigation companies is that the
ruling Of Judge Davis will prevent
such companies from getting fee
simple to lands foreclOsed upon
under their projects so that they
may sell to any purchaser that
desire or hold the land themselves.
n. NJ. Ruick of this city was the
attorney for the company and Har-
Ian D. Heist represented DR.. Dill.
The complaint was the ordinary
suit in foreclosure and set forth in
proper manner all the usual allie
cations Of such a case. Judge
Davis. after citing the facts and
calling attention to the argument
made by both sides, indicates his
ruling as follows:
Judge Davis Ruling.
A water right used on Carey act
ands may be severed from the
and, and a lien may be effective
~ the waller right and subject to
foreclosure, prior TO the patent Of
ne lands. even though no lien
would attach to the land. The
avs of Idaho exclusively govern
tile to water rights and the legal
ty of a lien thereon. although the
ederal statutes also apply to
lain of lien on Carey act lands
lot yet patented TO the state by the
rational government. And in deter
mining what are essential allega-
ions Of a complaint seeking to fore
lose on both the land and water
light the principles applicable to
lien on a water right for The
purchase price thereof should BE
onsidered independent Of those af-
ceiling a claim Of lien On the land
o which The water right may
ave been applied.
1T is apparent that the facts al
aged in the complaint are suffi-
lent to state a cause Of action for
oubt and are also sufficient TO
ntitle the plaintiff to foreclose
ems on The water rights described
] the complaint.
The federal law applicable 10
lis point reads: THAT under any /
Nv heretofore enacted by any
ate providing for the reclamation
arid lands = = = a lien or liens
hereby authorized to be created
the state to which lands are
'anted and by no other authority
hatever, and when created shall
valid on and against the sep (
ate legal subdivisions Of land re- Z
aimed. for the actual cost and ;
,cessary expense Of reclamation 3
ID reasonable interest thereon <
en- the date Of reclamation until (
sposed Of to actual settlers"
Provisions Made by Congress
If lhe federal government had e
interest in ihc land affected.
e complaint woUld also be su1gi-
mt to justify tbe foreclosure of
lien oa the landS described. But
lgress las thought proper to al !
Y lien on The public domain
" under certain conditions audi