Appellants and respondents in their briefs state that there is only one question before this court, namely: Were the lands of respondents subject to taxation for the year 1918? There is a stipulation in the record setting out the facts and to the facts so stipulated we are called upon to apply the law. From the facts it appears that respondents or their predecessors in interest actually settled upon the land described in the complaint in the year 1908; that prior to the year 1908 respondents or their predecessors submitted final proof of cultivation and residence to the state of Idaho as required by law and received from the state their final certificate; that after the *Page 613 issuance of said final certificate by the state the United States refused to issue patent for the land for the reason that the state was unable to furnish to the Secretary of the Interior satisfactory evidence that the lands embraced in the project were supplied with a proper system of canals and laterals and that sufficient water was available to properly irrigate all of the lands within the project, there being something like 60,000 acres in the project which was thereafter, on March 30, 1918, reduced to 35,000 acres and the water for the entire project confined to the reduced area. Thereafter the state again made application to the Secretary of the Interior for patents for the reduced area and on January 13, 1921, patent was issued therefor. Up until that time neither the state of Idaho nor the respondents, had legal or equitable title to any of the lands within the project. The trial court found that the final certificate issued by the state to respondents did not pass title thereto so as to subject the same to taxation for the year 1918 and to and including the 13th day of January, 1921. This finding was correct.
The case of Bothwell v. Bingham County, 24 Idaho 125,132 P. 972, cited by appellants in support of their contention, is in point against them. In that case final proof had been submitted to the state and subsequently, on January 9, 1911, the state received patent for the lands from the United States and upon the same day namely, January 9, 1911, the board of county commissioners of Bingham county caused taxes to be levied against said lands for the year 1911. This was upon the theory that final proof had been made by Bothwell to the state and that patent had been issued by the United States. Bothwell had an equitable title. The state had the legal title which it held in trust for Bothwell. There was no attempt to levy taxes against this land until the patent from the United States had been issued to the state. The rule would seem to be well settled that Carey Act lands are taxable when patent is issued to the state from the government and when the entryman has made final proof and earned his certificate from the state. *Page 614
In my opinion it would be useless to discuss this question further than to hold that the injunction enjoining the collection of taxes against the lands of respondents for the years 1918 and to and including January 13, 1921, was properly issued and should be made permanent.