« 이전계속 »
for 251 shares. In 1914 the Sparta Irriga-, lands for which this water right is issued shall tion Company acquired the Sparta ditch and bear their share in discharging and satisfying water rights; and in the same year the sev- said mortgage, according to its terms, which eral owners of the 1,500 acres transferred
proportion for said lands above described their respective portions of such 1,500 acres
amounts to the sum of $11,295, with interest, to the Sparta Irrigation Company. This cor
and, in case of foreclosure, costs and attorneys'
fees." poration then borrowed $22,500 from the Grand Rapids Trust Company on its bonds The Tallmadge certificate was recorded Ocsecured by a mortgage on property, includ-tober 20, 1916. ing the 1,500 acres, the title to which stood In 1909 a petition was filed with the Board in its name. The object of transferring the of Control (now known as the State Water 1,500 acres to the Sparta Irrigation Com- | Board) asking for a determination of the relpany was to enable the company to borrow ative rights of all persons to the use of the money; and so, when that object was ac-waters of Powder river and its tributaries. complished, the, lands were promptly recon The Board acted upon the petition, and subveyed to the real owners, burdened, of sequently, on April 1, 1916, the Board, in the course, with the mortgage.
language of the findings made by the trial On September 23, 1916, the stockholders courtof the Sparta Irrigation Company prepared,
"filed in the office of the county clerk of Baker adopted, and caused to be issued to each
county, Or., its findings of facts and order of stockholder a certificate headed : "Certificate determination in the matter of the determinaof Water Right Issued by the Sparta Irri- tion of the relative rights of the waters of gation Company.” It is said that this form Powder river, and that final decree in said matof certificate was designed for the purpose of ter was thereafter, on the 18th day of March, providing for the equitable distribution of the 1918, entered in this court, and that said findwaters to be diverted through the Sparta | ings are the findings and adjudication referred ditch. It should be explained also that the
to in said deed in its description of the convey.
ed water right therein mentioned." certificate is not to be confused with the ordinary stock certificate issued by all corpora In the Powder river adjudication it was detions. The certificate of water right issued termined that the stockholders of the Sparta to F. W. and L. W. Tallmadge (predecessors Irrigation Company owned 1,500 acres of land in interest of Campbell) illustrates the pur susceptible of irrigation through the Sparta pose of this form of certificate issued by the ditch, and that 750 inches or one-half inch per corporation to its stockholders. The docu- acre would be sufficient to irrigate the area; ment certifies that F. W. and L. W. Tall- but, in order to provide against seepage and madge own 251 shares of the capital stock to insure the delivery of 750 inches of water of the Sparta Irrigation Company and also upon the land, it was further provided that own 251/500 of the waters of the Sparta ditch 250 inches should be allowed for seepage and for the purpose of irrigating 753 acres of loss, and that therefore the Sparta Irrigation land which is definitely described by legal | Company was entitled to divert 1,000 inches subdivisions, including the land purchased by of water from the public stream and into its Mary C. Harvey. The document also recites ditch. It appeared at the time of the adjudi. the following:
cation that only a portion of the 1,500 acres "In case the ownership of said lands is
was ready for irrigation, and therefore time changed by conveyances thereof in amounts
was granted to prepare for changing the use less than the whole, then the rights under this
of water “from sale for domestic, mining, certificate shall attach to each owner of such power, and irrigation use to an irrigation lands in the proportion as his interest therein use"; and “the lands to be irrigated in makmay bear to the whole of said lands, and this ing such change shall be tabulated herein uncertificate may be canceled and new certificates der the head of inchoate rights.” issued, in like tenor, covering the right to each In this tabulation appear four subdivisions owner in the proportion to which he be entitled.
of 40 acres each covering the lands now "All expenses in the upkeep, extending, or enlarging of said ditch, or in the supervision of
owned by Mary C. Harvey. It will be re the distribution of the waters thereof, together
called that in the certificate of water right iswith all necessary expenses in the running of
sued by the Sparta Irrigation Company to said company, shall attach to said land, and to
F. W. and L. W. Tallmadge it is recited that the right to use water out of the said Spartathey own 251/800 of the waters of Sparta ditch as evidenced by this certificate and be a ditch and are entitled to 251/500 of such walien thereon until paid in the same proportion ter for the purpose of irrigating 753 acres of as the number of acres of land above described | land in certain described premises. (The bears to the whole number of acres irrigated
premises are described by legal subdivisions out of said ditch. * **
which, in the absence of shortage embrace “The Grand Rapids Trust Company, of Grand Rapids, Mich., now has a trust deed or mort
760 acres.) In the decree of the circuit court gage upon the said ditch and other lands in the
rendered in the Powder river adjudication it sum of $22,500, due January 1, 1925, with in
is determined that F. W. and L. W. Tallterest at 6 per cent. per annum, payable Janu- madge, his wife, "of said stockholders (of the ary 1st of each year, and the above-described Sparta Irrigation Company), are to have the
(209 P.) use and enjoyment of 3764 inches thereof, change in conditions, there was not enough the same to be appurtenant to the following water to satisfy the wants of the Harvey land described lands." Then follows a description if the water available for use on the Campbell of the lands by legal subdivisions which, in and Harvey lands was prorated. If, on the the absence of a shortage, embrace 760 acres. other hand, the first 80 inches had been diIt will be observed that the allowance of verted to the Mary C. Harvey land, only a 37642 inches is at the rate of one-half inch small and insufficient quantity would have per acre for 753 acres.
remained for use on the Campbell land. Wheeler worked for Campbell for wages When Campbell purchased from Warnock, for only a few weeks. When Mary C. Harvey he also received with the deed a transfer of purchased her land, she at once leased it to the 251 shares of stock in the Sparta IrrigaWheeler, and at the same time Wheeler rent- tion Company which the Tallmadges had ed from Campbell the remaining land owned owned; and, when Campbell conveyed 160 by him. Campbell also sold some land to acres to Mary C. Harvey, he also transferred Mrs. Dunne; and Wheeler also bad control of to her 5313 shares of such stock as her prothat land. During the season of 1918 Wheel- portionate interest in the ditch and water er had control of the distribution of all the right. Mary C. Harvey knew before she purwater available for use on the lands then chased the land that she would receive this owned by Campbell, Mrs. Dunne, and Mary stock together with a deed for the land. She O. Harvey; and he was in a position there attended the regular annual meeting of the fore to rotate the use of the water. A son of stockholders of the company held on FebruWheeler leased the Campbell land in 1919, but ary 4, 1918, and was elected a director; and during that season, just as during the season at the meeting of the directors held on the of 1918, Wheeler controlled the distribution same day she was elected secretary-treasurer, of the water; so that there was no friction and as such officer kept the minutes of the or clashing of interests during the irrigating meeting. She also attended the annual meetseasons of 1918 and 1919, although it does ing of the stockholders held on February 4, appear in the record that Wheeler claimed 1919; and the minutes of that meeting were that Campbell made some objection to the written by Mary C. Harvey as secretarymanner in which Wheeler was using the wa-treasurer. ter. However, in 1920 the situation changed ;] There was evidence to the effect that an for Campbell leased his land to William Long. irrigation district had been organized, and The plaintiffs commenced this suit on August that it was expected by the stockholders of 27, 1920.
the company that the district wished, if posIn 1917, when Campbell purchased from sible, to acquire the right to use the compaWarnock, only a comparatively small portion ny's ditch. It is claimed by the defendants of the 753 acres owned by Campbell had been that this subject was discussed at the Februprepared for water; but after the delivery of ary 4, 1919, meeting of the stockholders of the deed to Campbell more land was each the company, and that the stockholders were year prepared and made ready for irrigation, advised that they ought without delay to enso that in 1920 a much larger area was in a large the ditch because the time allowed by condition to be irrigated than in 1917. In the Water Board for enlargement was about the Powder river adjudication notice was to expire. There was evidence to the effect taken of the fact that the capacity of the that it was suggested at the meeting that ditch had been reduced, and that it would be possibly arrangements could be made wherenecessary to enlarge the ditch before it could by the district, in consideration for the right carry one-half an inch per acre for the 1,500 | to use the ditch, would agree to pay all the acres entitled to water; and consequently a expense of enlargement and would enlarge period of five years was allowed as time with-the ditch sufficiently to carry water for both in which to enlarge the ditch and restore it the district and the stockholders of the comto its original capacity. In 1917, when Mary pany, and thus save the stockholders from C. Harvey purchased from Campbell, the paying for any of the work, but that, if any ditch had not yet been enlarged. The capaci- right to the ditch should be transferred to ty of the ditch in 1917 was only about 375 | the district, care ought to be used so as to inches. In other words, the ditch could sup preserve for the company the right to 750 ply only 375 inches for the 1,500 acres. inches of water without regard to the past or These 375 inches were prorated among the present carrying capacity of the ditch. This owners of the 1,500 acres. The proportion evidence offered in behalf of the defendants which was available for use on the 753 acres is to some extent corroborated by the minowned by Campbell, Mrs. Dunne, and Maryutes of the stockholders' meeting held on O. Harvey at all times in 1918, 1919, and February 4, 1919. 1920 exceeded 80 inches, but at no time did it On September 15, 1919, an attempt was equal one-half inch per acre. Apparently made to hold a special stockholders' meeting Wheeler was able to distribute the water at the Campbell ranch with a view of taking with satisfactory results in 1918 and 1919; necessary steps for enlarging the ditch, Mabut in 1920, because of the increase of land ry C. Harvey and Mrs. Dunne refused to sign prepared for irrigation and because of the waivers of notice, and the former made it known that in her deed she claimed the right such condition as to carry the full quantity of to 80 inches of water without any liability 750 inches, and that said parties knew thereof to pay any expense incurred in enlarging the and knew the status of the title to said ditch ditch, although she did state that she was li
and water right, and the method of distribution able for her proportionate share of the ex
of said waters among said stockholders as here
tofore stated; that simultaneously with the de. pense of upkeep.
livery of said deed the said defendant Floyd J. There is an irreconcilable conflict in the
Campbell assigned from his holdings of said testimony. Mary C. Harvey says that she capital stock, and caused to be issued to said purchased solely on the faith of representa- plaintiff Mary C. Harvey, in lieu thereof, 5343 tions made by Campbell; but he claims that shares of said capital stock, same being the Wheeler induced her to buy. It is conceded | number of shares to which she as such owner that Wheeler received from Campbell a com of 160 acres of said land would be entitled unmission on the basis of $5 per acre for the
der the system under which the waters flowing land sold to Mary C. Harvey as well as for
in said ditch were to be distributed by said cor
poration. the land sold to Mrs. Dunne; and it is like
"That said parties to the aforesaid deed knew wise admitted by Mary C. Harvey and Mrs.
of said certificate and of the rules and regu. Dunne that they did not know prior to the
lations under which said Sparta Irrigation Com. purchase that Wheeler was to receive any pany was obligated to distribute the waters flowcommission; nor did they know until longing in said Sparta ditch, and that said plaintiff after they purchased that he had received a accepted and retained the said shares of capital commission. It is claimed by the plaintiffs stock so delivered and assigned to her, and be-' that prior to the sale to Mary C. Harvey,
came one of the directors of said corporation, Campbell represented that there was plenty
and served as its secretary and participated in of water in the ditch so that the land would
its meetings and availed berself of the benefits
accruing to her by virtue of being such stockreceive one-half inch per acre, and that they
holder, and that ever since said plaintiff became were given to understand that the ditch was
such stockholder she has, like the other stockcarrying 750 inches of water; that Campbell holders, received and accepted from said corsaid nothing to Mary C. Harvey about the ne- poration the same proportion of the total flow cessity of enlarging the ditch until Septem- of water in said Sparta ditch as the number ber 15, 1919, when an attempt was made to of shares of capital stock held by her bears to hold a special meeting of the stockholders ;
of the stockholders: the total issue, all in conformity with said rules and that nothing was said prior to the sale
and regulations and as in said certificate pro
vided, and that said corporation distributed said about prorating the water. Campbell claims
| water continually to each of said stockholders, that Wheeler on the day of his arrival looked
including the said plaintiff Mary C. Harvey and at the ditch and estimated that it was carry.
said defendant Floyd J. Campbell, pro rata acing only about 500 inches; that Mary C.
cording to the number of shares held by each Harvey knew that it would be necessary to stockholder respectively, and under which sysenlarge the ditch before it could carry 750 tem the said plaintiff received 5343/500 as owninches, and that, if she purchased, she would er of 531% shares of said capital stock, and said receive with the deed 5342 shares of stock of defendant received 19748/500 as owner of the Sparta Irrigation Company, entitling her 1978 shares of said capital stock. to 534/500 of the water coming from the "That by reason of said Sparta ditch not ditch; that she examined an abstract con
on being in its present condition capable of carry
ing the full quantity of 750 inches of water, taining a transcript of the certificates of wa
which quantity said corporation had the deter right issued to the Tallmadges, and that
creed right to divert, there was never available she knew of all the provisions in the certifi from said ditch the full quantity of one-half cate; that she was aware of all the facts | inch per acre to the lands of said stockholders, relating to the water right, including the fact and that for said reason, and not otherwise, that by purchasing the land she would ac
neither said plaintiff nor said defendant, nor
any other stockholder, received at any time the quire the right only to her proportionate
full quantity of one-half inch per acre of said share of 750 inches of water or her propor
water, and that said quantity cannot be had tionate share of whatever less quantity was
- until said Sparta ditch shall have been so imdelivered by the ditch.
proved and repaired, and that with a view to An attempt to reconcile the testimony carry out the said purposes of its organization would be to attempt a hopeless task. Obvi- under its articles and by-laws the said corporaously the trial judge, who saw and heard the tion has undertaken to provide the plans and witnesses, was on that account in a better po
means to carry into effect the said necessary sition to determine the facts than we can
"That prior to the execution of said deed possibly be when examining a mere paper rec
the said plaintiff S. S.. Wheeler occupied said ord. It is our conclusion, after a careful in
lands of said Floyd J. Campbell as lessee, and vestigation of the entire record, that we are since the execution of said deed occupied also not warranted in disturbing the findings made the said lands so conveyed to said Mary C. Harby the trial judge who found among other vey as lessee; that said plaintiff S. S. Wheeler facts the following:
was thoroughly experienced and familiar with
the quantity of water flowing and available "That at the time of delivery of the afore- through said Sparta ditch and with the use mentioned deed said Sparta ditch was not in thereof for irrigation of said lands, and knew
(209 P.) of the said status of the title and said rules and ; regulations under which said waters were dis- STATE ex rel. BAYER v. FUNK, Cify Auditor. tributed; that in the negotiations between the said parties to said deed the said S. S. Wheeler (Supreme Court of Oregon. June 27, 1922.) acted as agent between them, and received compensation by way of commission for his services 1. Municipal corporations Om 244(1)-Offer of as such agent; and that after the execution, city to reimburse contractor for losses held the same as theretofore, the said lessee con not binding, tinued to receive and accept, under said system Offer of city to reimburse a contractor for and regulations so adopted, for the use upon losses on condition that the contractor comsaid lands so conveyed as well as upon the mence legal proceedings and obtain a judicial lands still owned by said grantor, the water as determination that the city council had author80 distributed by said corporation in accord- ity to pay a moral obligation did not become a ance with the said respective shareholdings, and binding contract by reason of the passage of not otherwise, so long as he remained such les
ordinances making an appropriation and the see of said grantor."
placing of a release in escrow by the contrac
tor, where no judicial determination had been We also approve the following conclusions obtained as to the authority of the council to reached by the trial court:
pay a moral obligation. "Since no reference to any capital stock in 1 2. Accord and satisfaction w 17-Accord not said corporation is mentioned in said deed, and followed by satisfaction revocable at will. since nevertheless said grantor assigned and An accord is not a bar to an action on the delivered to said grantee 5343 shares of said original liability unless it has been followed by capital stock out of the shares theretofore held satisfaction, being revocable at will by either by said grantor, and since said grantee accepted party. and retained said shares and availed herself of
3. Accord and satisfaction w 19Promise may the benefits thereof in conformity with the by
be accepted as full satisfaction of original laws and rules and regulations under which said
obligation. corporation managed said affairs and distributed said water, under which system and regulations,
Where the agreement is that the promise, and as known to both of said parties, the wa-and not the performance of the promise, is acters were so distributed to such stockholders | cepted as full satisfaction and extinction of the pro rata according to the number of shares held | original obligation, there is an accord and satisby each respectively, said facts and said volun- / faction, and the promisee has a right of action tary acts evidenced the meaning with which against the promisor for his failure to perform. each read and understood said deed and their 4. Compromise and settlement 8(1)-Good said transactions, and that said deed cannot be
faith and fairness necessary. construed to mean that the full or maximum
The very basis for the enforcement of a quantity of one-half inch per acre should be delivered regardless of the quantity flowing in
contract, compromising a disputed claim, is said ditch or quantity available and regardless
tbat the parties should have acted in good faith, of the number of shares of said capital stock
and that the transaction should be fair. held by such stockholders.
5. Accord and satisfaction aml-Compromise "Since the findings of said State Water Board and settlement 8(1)-Minds of parties disclose that the water right of said Sparta Ir- must meet.' rigation Company was an inchoate right, and ] In all contracts, whether of accord and sat. since said corporation was by said adjudication | isfaction or the compromise and settlement of and findings allowed time to perfect its ap- ' a disputed claim or otherwise, it is essential to propriation and to then divert as a maximum the validity of the contract that the minds of quantity, not to exceed 750 inches, and 250 the parties have met in agreement with each inches allowed for seepage and loss, and since other it is established by the evidence herein that said maximum quantity had not been diverted and 6. Action C 6Courts will not pass upon ab. could not be carried in said ditch until said stract propositions. system was completed and said ditch repaired Courts pass upon concrete cases, and not and improved, which facts were well known to abstract propositions of law. the parties to said deed, the description of
| 7. Stipulations said granted water right mentioned in said deed
Om 17(3)-Courts pass upon means a water right of like or similar character,
facts, and cannot be limited by stipulation. i. e., a right to divert from said ditch a maximum Courts pass upon facts appearing before quantity of 80 inches when said system shall them, and their jurisdiction cannot be limited by have been perfected and said ditch so improved the stipulation of parties, so as to deprive and repaired, and that same does not mean that the court of its power to pronounce judgment said quantity is to be furnished by said grantor upon all of the material facts in the case: nor from his private ditches."
can a stipulation of the parties or counsel en
large the power or affect the duty of the court. The decree is affirmed, but without costs to 8. Municipal corporations can 244(2)-City not any party in either court.
bound by contracts in absence of compliance
with charter. RAND, J., took no part in the considera- , Compliance with a provision of a charter tion of this case.
I providing that the city shall not be bound by
Em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
any contract unless authorized by ordinances,, George H. Funk, as Auditor of the City of and made in writing, and signed by certain per | Portland, to issue a warrant. Demurrer to sons, must be had before liability will attach answer overruled. against the city.
Martin L. Pipes, of Portland (John M. 9. Constitutional law Ow92-City cannot de
| Pipes and George A. Pipes, both of Portland, stroy vested right by repealing ordinance.
on the brief), for plaintiff. A city cannot destroy vested rights created
Frank S. Grant and L, E. Latourette, both by an ordinance by repealing it.
of Portland, for defendant. 10. Mandamus m3(2)—Not issued where adequate remedy at law. Mandamus will not be issued in any case ex rel. Baver v. Funk, City Auditor.(Or.) 199
RAND, J. As heretofore stated in State where there is a plain, speedy, and adequate remedy in the ordinary course of the law.
Pac. 592, these proceedings were brought on
the relation of J. C. Bayer, trustee, against 11. Municipal corporations ma 1015-city coun the defendant, as auditor of the city of cil may repeal ordinance allowing claim. Portland, to compel defendant, as auditor,
There is no reason which would prevent to issue to the relator a warrant for $36,the city council, after the passage of an ordi. 702.84. nance which allows a claim and directs its pay. This controversy grows out of a contract ment, from repealing such ordinance at any
for the construction of the Auditorium Buildtime before the payment has been made.
ing, in the city of Portland, entered into by 12, Municipal corporations C897-Duty of |
the city with Hans Pederson on March 22, auditor to satisfy himself that money is le
1916. Pederson, after commencing the congally due before drawing warrant.
struction of the building, becoming involved, Under its charter, it is the duty of the on May 3, 1917, joined with his creditors and · auditor of the city of Portland before paying
the sureties upon his bond to the city in en. any demand against the city to satisfy himself
tering into a contract with J. C. Bayer, the that the money is legally due and its payment is authorized by law, and until so satisfied he has
relator, as trustee, wherein, with the consent no authority to draw a warrant, even though
of the city, it was agreed that the relator, as the city council has ordered a warrant drawn.
trustee for Pederson and for his bondsmen
and creditors, should carry out Pederson's 13. Municipal corporations Ow58-City charter
contract with the city, and should receive and is a grant, not limitation of power.
disburse all moneys to be paid by the city The municipal charter of the city of Port
upon the Pederson contract. land is a grant, and not a limitation of power.
It now appears that the contract between 14. Contracts Ow76–Moral obligation is not Pederson and the city has been completely a sufficient consideration in support of an
performed by Pederson and the relator on executory express promise.
the one side, and by the city on the other; A moral obligation is not a sufficient con
that the city took no part in the construction sideration to support an executory express
of the building, other than to completely perpromise unless there has been an antecedent
form the contract on its part; that the city legal liability, which has become suspended or
has paid all sums it contracted to pay; that, barred by operation of some positive rule of law, which extinguished the remedy, but not the
in addition thereto, it has already paid to debt, or where the promisee has suffered some the relator, as trustee, the sum of $21,525, detriment in reliance upon the promise, or which sum was paid to reimburse Pederson where the promisor has received an actual for an error which he claimed to have made pecuniary or material benefit for which he sub-! in computing the bid upon which he was sequently expressly promised to pay.
awarded the contract; that the city has also 15. Municipal corporations fam878-City of
allowed and paid, over and above the conPortland has no authority to pay out money
tract price, $11 per thousand for the brick except upon legal obligations.
entering into the construction of the buildThe council of the city of Portland, under
ing; and that other considerations of value, its charter provisions, has no power or author- which the city was not required to make, ity to pay out the public moneys of the city in
were made by the city in favor of relator payment of any obligations except the legal and Pederson. It also appears that a final obligations of the city.
settlement was made by the city with Peder16. Mandamus Emil Issued only where duty
son and the relator, and that a final receipt is legally defined.
was given, and that a full and complete reMandamus is an extraordinary remedy, and
lease to the city was executed and delivered is not a writ of right, and is issued only where
by the relator and by Pederson, discharging the duty sought to be enforced is one legally
the city from all liability to the relator or to defined.
Pederson upon or in connection with said
contract. In Banc.
In our former opinion we overruled a de Proceeding in mandamus by the State, on murrer to the answer to the first alternative the relation of J. C. Bayer, Trustee, against writ of mandamus, and allowed the defend
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes