The Emmett index. [volume] (Emmett, Idaho) 1893-1925, 1916-12-14
DRAINAGE CASE TO Be
REHEARD
Supreme Court Remands for
Further Trial-Order of Dis
trict Court Is Reversed

( The supreme court remanded for
trial the case Of drainage ditch No.
Of Canyon county, C. G. Burt ct al.
commissioners Of the district versus
the Farmers Cooperative Canal COM
pany and the Noble Ditch company in
decision handed down yesterday
when an appeal from the judgment Of
the lower court was given a re-hear-
( ing. The district court for Canyon
county is directed TO frame the neces-
sary issues by allowing proper
amendments to all pleadings. A for
mer decision Of the supreme court is
modified by the present one The case
I is one Of considerable Importance in
I Canyon and Gem counties.
Justice Alfred Bulge wrote the de-
cision. His findings are concurred in
by his associates. The court found it
was confronted with most unusual
situation growing out Of not only the
question involved, but also Of the form
of the pleadings required by the stat
utes in cases Of this character.
The court says concluding it's deci-
sion:
"An examination OF the record be-
fore US discloses the fact that the
questions Of law and fact, arising
I by reason of the report Of the
drainage commissioners and the re-
monstrances Of the respondents made
thereto, are more or less confusing,
and questions have been suggested by
counsel on the arguments and in their
briefs that may become very material
in the proper determination Of the
questions involved in this case, and
especially as TO the proper construc-
ton of the drainage act, upon which
this case is based and the future pol
icy Of the law with reference to the
creation Of drainage districts within
the state and the assessment Of bene-
fits. In this case the trial court con-
strued and acted upon the remOnstran-
ces as demurrers 10 the report OF the
drainage commissioners, thereby ig-
noring the numerous issues Of facts
presented by such remonstrances, the
determination OF which may have an
important bearing upon the final de-
termination Of the legal questions pre-
sented BY such remonstrances. It fur
ther appears TO this court that what
ever questions this court may deter
mine on the record before it, still the
case must go back for trial.
1T seems hardly proper to call up
on this court TO definitely determine
many of the legal questions that may
be presented on the present record,
and especially to construe the drain
age act and amendments thereto as
applicable to this case, when It is
apparent from the record and sug-
gestions OF counsel that other facts
should be pleaded and the questions
Of law and fact should be segregated
and such questions Of fact supported
BY testimony.
"In view of the foregoing, the trial
court viii proceed to frame the ne
cessary issues by allowing proper
amendments 10 all pleadings, and will
receive evidence touching the liability
of respondents, as well as that Of all
other property owners claimed TO be
liable to assessment for the purpose Of
making the proposed improvement,
whether now in the district or hereaf-
ter included or properly sought TO be
included therein. and the legal ques-
tions considered by the court on the
former hearing Will not be deemed the
law Of this case, or as binding on the
trial court upon the trial of this case,
and this court hereby expressly re
serves the right to place a final con-
struetion upon the drainage act and
the amendments thereto as contained
in the session laws Of 1913, at page
l24, until such time as these acts are
before this court in proper form as
herein indicated.
"The order Of the district court is
therefore reversed, and the cause re
nsanded for further proceedings. with
the privilege allowed TO the parties to
this proceeding to amend the plead
ings in the trial court in such man
ner as may be proper"
History of the Case.
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