Lincoln County times. (Jerome, Idaho) 1911-1919, 1914-03-12
COMPANIES CAN FORECLOSE.
Supreme Court Decides That Gov
ernment Is No Party
to AtciOn.

still In the United States, and the
United States cannot be r4ade n party
10 the suit.
This point is emph asi e and made
clear in decision Id ldei down in
The state supr IL court on Saturday
in the case OF the Idaho Irrigation
company agains Charles William
Dill, a settler on the project In a
voluminous opinion written by JUS
tice Sullivan and concurred in by the
other members of the court, the right
Of the irrigation company to enfort
upheld.
The litigation represents an ac-
tion to foreclose a Carey act lien and
is based on the contracts between the
Idaho Irrigation company and Dill, a
settler, the company having sold Dill
water rights under its project The
complaint alleges four separate caus-
es for action. Dill demurred to the
complaint. The lower court over
ruled his demurrer as to the first two
grounds and sustained 1t as to the
third, thereby holding that the Unit
ed States was a necessary party to
the action. The Idaho Irrigation Co.
was given ten days in which to file
an amended complaint, but 1t de-
clined to amend and the court enter
ed a judgment OF dismissal. From
the judgment the appeal was perfect
ed.
The only question presented on the
appeal is whether the court erred in
sustaining the demurrer upon the
grounds that the United States was
necessary party to the action. Pass
ing upon the issues involved, the
court says;
For the purposes OF this demur-
rer, all the facts that can be consid-
cred by this court are those appear
ing upon the face Of the complaint.
and 1t does not appear I'm the com
plant that the non-joinder OF the
United States as party defendant to
this action has in any manner pre-
] JUDGED any inerest OF the respond
ent.
I'm case the appellant is entitled
to foreclosure and sale, the defend
ant has a right TO redeem from such
sale at any time within nine months
and then may proceed and obtain
his title from the state as provided
by law. II he does not redeem, the
foreclosure sale can in no manner in
terfere with or affect the title OF the
| United States In and to said lands. 1t
is elementary that II a person is rot
made a party to an action, his rights
cannot be determined or affected by
a judgment or decree entered in such
case. Every person has a right to his
day in court. and as before stated, by
the allegations of the complaint 1t is
clearly shown that the plaintiff is not
seeking In any way to cloud or inter
fere with the title of the United
States.
I'm this case 1t is not sought to ac-
quire any title from the government
or to foreclose any right or interest
the government has in and to this
land. So far as the present action is
concerned, it seems to be prosecuted
on the theory alone OF acquiring such
interests only as the settler has ac.
quired and to foreclose whatever
property interests he has acquired in
and to this land. The question as tc
whether or not one who attempts tc
foreclose a lien for cost Of construc
tion OF an irrigation system and tc
supply water for reclaiming land
can not, under the act of congres.
authorizing such lien, acquire tn,
paramount title from the United
States in a proper action, is not in
volved in this case, and so we are no
called upon to pass upon that ques
ton
IF party foreclosing such licr
should seek to acquire fee simple
title in and to the land and foreclos
ure as against the United States, |
Mouiu bt utNtSSdly W udht tnc gov
ernment a party defendant in the &C
ton. 1t is thought by some tina: un
der the act of congress conferrinl
the right of n lien for cost OF con
> struction of irrigation works unde
the Carey act that the fee simple an,
paramount title might be acquire,
under a foreclosure sale in such &C
q ton. We refrain, however. from
discussing or passing upon that ques
tion.
p 1.-THE court erred In sustaining salt
!. demurrer and entering the judgmen
of dismissal. The Judgment mus
therefore be reversed and 1t is so or
dered and the cause is remanded t.
the trial court with directions to ov
= errule said demurrer and permit tn
defendant to answer"