February 13, 1906, a contract was entered into between the Payette-Boise Waters Users Association and the United States for the construction of a Federal *Page 541 Reclamation Project, known as the Boise project. Some years thereafter, to-wit, December 19, 1925, the Wilder Irrigation District was organized. Shortly thereafter, April 6, 1926, a contract was entered into between the United States and the District, subject to later authorization by the electors of the District, as well as to later judicial confirmation, for the acquisition of the Boise Project by the payment of the costs to the United States of the construction of that project, as in the last mentioned contract provided. Following the approval of the contract by the electors of the district, a confirmatory decree was entered April 6, 1926.
The 1926 contract established a Board of Control [nine in number] to act as the operating agent of the main canal of the Arrowrock Division of the Boise Project, through which the New York Canal [now the New York Irrigation District], Nampa and Meridian Irrigation District, Boise-Kuna Irrigation District, Wilder Irrigation District and Big Bend Irrigation District [in Oregon] receive water. Members of the Board of Control were and are elected by the Boards of Directors of the respective districts from among their own members, and representation on the Board of Control was fixed on an acreage basis. Under the terms of the contract involved in this suit, the provisions of the 1926 contract providing for a Board of Control are made applicable insofar as the control and distribution of water are concerned.
It was found, in the course of time, the water supply provided under the terms of the contract between the United States and the District, dated April 6, 1926, was not sufficient for the proper irrigation and reclamation of the lands within the district. That led the district to take steps to obtain additional water and to that end, the district entered into another contract with the United States, dated January 13, 1941, also subject to later authorization by the electors of the district, for 33 71/100 per cent of water to be stored in the Anderson Ranch Reservoir to be constructed by the United States. This second contract was likewise approved by the electors. Thereafter, to-wit, May 6, 1941, a petition, in the usual form, was filed in the District Court of Canyon County praying that "each and all of the proceedings had and taken by the Board of Directors of Wilder Irrigation District, for and in connection with the special election held in said District on April 7th, 1941, *Page 542 in the authorization of the execution of that approved contract 'concerning the construction of Anderson Ranch Reservoir and related matters', between the United States of America and said Wilder Irrigation District, approved by the Secretary of the Interior, January 13th, 1941, and approved and ordered filed by said District's Board of Directors, February 4th, 1941, be examined, approved and confirmed by this court, and that the legality and validity of the said contract be determined and established by decree of this court."
At the conclusion of the submission of proof by the District in support of its petition, it was stipulated by counsel for the respective parties that "the following questions shall be submitted to the court for its decision:
"(a) Does the Wilder Irrigation District and its Board of Directors have the power and authority to enter into the contract sought to be confirmed in this action, in so far as the same relates to the Board of Control as referred to in said proposed contract?
"(b) Has the Wilder Irrigation District, or the Board of Directors thereof, the power or authority to enter into the proposed contract insofar as the same provides by paragraph 43 thereof for the right to substitute, at some future time, waters to be diverted from the Payette River or from the Salmon River into the Boise River above Diversion Dam, as provided for in said contract?"
An examination of the record discloses these questions are also presented to us for decision.
It may be stated at the outset appellants do not contend respondent has not fully performed each and every act required to be done or performed by it under the applicable provisions of the statute; nor do appellants question the need and necessity for an additional and supplemental water supply; nor that the cost of acquiring additional water is unreasonable. Whether, then, respondent Wilder Irrigation District has power to enter into the contract sought to be confirmed in this action, depends upon whether the statute authorizes it to do so. In 1917, our legislature enacted a statute providing for the cooperation of Irrigation Districts with the Federal Government in the reclamation of and lands [Title 42, Chap. 18, Cooperation With Federal Government, 2 I. C. A., p. 1568]. We quote the following sections of the statute deemed pertinent to the decision of the first question: *Page 543
[Sec. 42-1801, I. C. A.]. "COOPERATION WITH GOVERNMENT UNDER ACT OF AUGUST 11, 1916. — The board of directors of any irrigation district organized under the laws of this state may make such investigations and based thereon, such representations and assurances to the secretary of the interior as may be requisite under the Act of Congress of August 11, 1916, entitled, 'An Act to Promote Reclamation of Arid Lands,' 39 U.S. St. L., ch. 319, p. 506."
[Sec. 42-1803, I. C. A.]. "CONTRACTS WITH FEDERAL GOVERNMENT UNDER RECLAMATION ACT. — The board of directors of an irrigation district organized under the laws of the state of Idaho may enter into any obligation or contract with the United States for the construction, operation and maintenance of the necessary works for the delivery and distribution of water therefrom under the provisions of the federal reclamation act and all acts amendatory thereof or supplementary thereto and the rules and regulations established thereunder; or the board may contract with the United States for a water supply under any act of Congress providing for or permitting such contract."
[Sec. 42-1804, I. C. A.]. "GENERAL POWERS OF BOARD CONTRACTING WITH GOVERNMENT. — The said board shall have full power to do any and all things required by the federal statutes now or hereafter enacted in connection with such contracts, and all things required by the rules and regulations now or that may hereafter be established by any department of the federal government in regard thereto; and in the purchase of any property or property rights, or in acquiring or contracting for the water supply of the district, the bonds of the district may be used by the board at not less than ninety per cent of their par value, in payment."
Notwithstanding the fact the legislature, by the enactment of the above-quoted sections, vested in Irrigation Districts full and complete power to "enter into any obligation or contract with the United States for the construction, operation, and maintenance of the necessary works for the delivery and distribution of water," and "for a water supply," and to that end "to do any and all things required by the Federal Statutes now or hereafter enacted in connection with such contracts, and all things required by the rules and regulations now or that may hereafter *Page 544 be established by any department of the Federal Government in regard thereto," appellants contend the contract in question is ultra vires and void in that it delegates full power to the Board of Control and takes the management of the irrigation system and the distribution of water out of the hands of the District and places the same in such Board of Control, contrary to the provisions of Section 42-304, I. C. A., and that "any act done in excess of the powers granted by this statute is void," citing Colburn v. Wilson, 23 Idaho 337, 130 P. 381; In re King Hill Irrigation District, 37 Idaho 89, 221 P. 839; Yaden v.Gem. Irr. Dist., 37 Idaho 300, 216 P. 250.
Sec. 42-304, supra, does not support appellants' contention. While that section provides "said board shall have the power to manage and conduct the business and affairs of the district," it further provides "the board of directors of an irrigation district organized under the laws of the state of Idaho mayenter into contracts for a water supply to be delivered to the canals and works of the district, and do any and every lawfulact necessary to be done that sufficient water may be furnished to the lands in the District for irrigation purposes." [Emphasis ours.] It will be observed the board is expressly authorized to contract "for a water supply" and to "do any and every lawful act necessary to be done that sufficient water may be furnished to the lands in the district for irrigation purposes." Hence, instead of acting in excess of the powers granted by Sec. 42-304, supra, the Board, by entering into the contract, discharged one of the most important duties imposed upon it by that section. To give the provision of the section vesting in the board "the power to manage and conduct the business and affairs of the district", the construction contended for by appellants would have the effect of making it most difficult, if not impossible, for the Board to contract for a water supply and thus furnish water for the irrigation of the lands within the district, without which the existence of the district would be worse than useless.
Nor do the cases cited support appellants' contention. InColburn v. Wilson, supra, it appears the district owned a dam and reservoir and a certain part of a main canal which supplied water to its landowners and that it entered into a contract under the terms of which the management and control of the system were taken out of the hands of the District Board and placed in the hands of strangers. *Page 545 This court, of course, held the contract was ultra vires and void. The Colburn case is not in point here in that the District in the case at bar, never owned, and does not now own, and will not own the property covered by the 1926 executory contract in question here until the district performs the terms and conditions of such contract to be done and performed by it. Furthermore, the property covered by that contract has never been in the possession nor under the control of the respondent district, as in the Colburn case. Therefore, never having had possession, control or management of the property covered by such contract, other than jointly through the Board of Control complained of by appellants, it follows the possession, control and management could not be [and an examination of the contract discloses the property is not] taken out of the hands of the District Board and placed in the hands of the Board of Control.
The King Hill Irrigation District case, supra, involved the question of the power of that district to levy a valid assessment of benefits growing out of a contract between that District and the United States for the reconstruction, repair and improvement of an irrigation system designed to irrigate the lands upon which the assessment of benefits was levied, it being contended the district could not levy such an assessment without first having acquired the ownership of the canal system. The question now under discussion was not involved in the King Hill Irrigation District case.
Yaden v. Gem Irr. Dist., supra, was a proceeding in mandamus against the district to compel it to deliver surplus water for the irrigation of land lying outside the district. It was contended by Yaden, appellant in that proceeding, "that the water having once been applied to irrigate land and used for agricultural purposes, it was such a dedication and distribution of waters to a beneficial use she could not thereafter be deprived of." In the course of the discussion of that contention this court said that "an irrigation district acquiring a system which had theretofore furnished water to settlers outside of the district who had a vested right thereto is compelled to continue to deliver such water. But an irrigation district acquiring a system which only furnishes water to settlers within the district cannot be compelled thereafter to furnish water to settlers outside of the district. Irrigation districts are *Page 546 creatures of the statutes. They are quasi-public or municipal corporations, and as such have only such power as is given to them by statute, or such as is necessarily implied" [citing cases], and that "the power of the directors or other officers of an Irrigation District is limited and any act done in excess of the express or implied provisions of the statute by such directors or other officers is ultra vires", to which of course, we adhere. In the case at bar, however, instead of the Board of Directors or other officers of the respondent district either doing or attempting to do anything whatever in excess of either the express or implied provisions of the statute, the Board did only what the statute expressly authorizes it to do.
We come now to the consideration of the second question. Has the respondent District power to enter into a contract with the United States whereby the United States may, at some future time, substitute an equal amount of Payette and Salmon River water for District Boise River water?
The right to substitute waters of one stream for those of another was presented to this court in Agnes B. Reno et al., v.J.R. Richards, et al., 32 Idaho 1, 178 P. 81. In that case it appears Birch Creek "has its source in Lemhi County, near the southern boundary"; that "it flows in a southeasterly direction for a distance of about thirty miles, its waters gradually sinking into the ground along the lower part of its course until they are all absorbed at a point commonly known as Birch Creek Sink, and they do not appear again at any known place"; that "Pass Creek has its source in a number of springs, and after flowing a distance of about six miles through a canyon, continues a distance of about three and one-half miles through a comparatively level country to a point where it empties into Birch Creek; that the soil through which it flows is very porous; that many obstructions were in the stream, and that there was a large percentage of loss by seepage and evaporation in its natural channel"; that Frank and Jessie Worthing "by removing obstructions from the channel, such as brush and fallen logs, and excavating channels through sand-bars and other obstructions, for a distance of some miles through the canyon, and by taking out a ditch of sufficient capacity to carry all the waters of the creek the remaining distance of three or four miles, they have considerably augmented the flow of the stream"; that the *Page 547 Worthings, having increased the flow of the waters of Pass Creek [which flows on down and empties into Birch Creek] by about two second feet, claimed the right to take that amount of water from Birch Creek for the irrigation of their lands located above the point of the junction of those streams; that there were no intervening rights between those points; that there had been a "prior adjudication of the rights to the use of the waters of this stream [Birch Creek]." It thus appears in the Reno case the waters of Birch Creek had been decreed some 24 years before, and, therefore, that the waters of that stream had become appurtenant to the lands for the irrigation of which they had been decreed, just as it is contended by appellants the waters of Boise River have been decreed and become appurtenant to the lands of appellants' and, of course, other landowners in the respondent district. With substantially the same question presented as appellants contend is presented in the case at bar, this court, in the Reno case, held that "in the absence of detriment to other users of waters from Birch Creek, there is no doubt of their [the Worthings'] right to make a diversion from Birch Creek, at their point of diversion, of the amount of [increased] water which they caused to flow therein for the use of other appropriators farther down the stream."
It follows from this holding the fact water has been decreed for the irrigation of lands and become appurtenant thereto does not, for that reason alone, as contended by appellants, prevent a substitution; and, further, that a decree and the appurtenancy of water to lands do not, in and of themselves, constitute a sufficient reason for denying a substitution or exchange of water.
But appellants insist Daniels v. Adair, 38 Idaho 130,220 P. 107, supports their contention. It appears in August, 1923, Margaret Mahaffey and the Pioneer Bank Trust Company filed a complaint in the District Court for Lemhi County, by which they sought, among other things, a decree awarding them the right to use 175 inches of the waters of Agency Creek for the irrigation of their lands; that in 1914, a ditch, known as the Lemhi River Ditch, was constructed for the purpose of delivering water from the Lemhi River to Agency Creek and to supply interveningusers; that Mahaffey and the bank sought, by delivering a certain amount of water from the river into the Lemhi Ditch, to have an equal amount of water delivered to them out of *Page 548 Agency Creek in exchange therefor; that Daniels, the water-master of Agency Creek, refused to deliver any of the waters of Agency Creek to Mahaffey and the bank; that in December, 1914, Fred B. Pattee and Joseph L. Pattee and others, by decree, had been awarded all of the waters of Agency Creek; that Mahaffey and the bank sought to compel the Pattees to accept undecreed Lemhi River water at a point below their (the Pattees) point of diversion on Agency Creek, just as long as Mahaffey and the bank delivered 175 inches of the waters of Lemhi River into Agency Creek through and by means of the said Lemhi Ditch.
Upon the filing of the above-mentioned complaint by Mahaffey and the bank, on motion, an injunction issued enjoining the Pattees and Daniels, the water-master, from in any manner interfering with the alleged right of Mahaffey and the bank to use the said 175 inches of water so long as said amount of water was being supplied to the waters of Agency Creek from the Lemhi River through the Lemhi River Ditch, and requiring Daniels, the water-master, to deliver said water to Mahaffey and the bank. Following the issuance of the injunction, the Pattees and the water-master were cited for contempt for failing and refusing to comply with the injunction. Thereafter, a motion was made to dissolve the injunction. The motion being denied, the Pattees and Daniels, the water-master, prosecuted an original proceeding in this court (Daniels v. Adair, supra), to secure a permanent writ of prohibition enjoining Honorable Ralph W. Adair, then Judge of the District Court of the Sixth Judicial District, from taking any further action in said contempt proceeding.
It will be noted Mahaffey and the Bank sought to compel the Pattees to accept below their point of diversion the water which had theretofore been decreed to them, and also that therewere intervening rights. To compel the Pattees to accept their decreed water below their point of diversion would, of course,work an injury to the Pattees as well as to intervening waterusers. This Court quoted that part of the opinion in Reno v.Richards, supra, wherein it was held an exchange of water would be permitted "in the absence of detriment to other users of water" and intervening rights, and again held, in harmony with the Reno case, that "under no circumstances can it be done [referring to the proposed exchange of water] where the exchange would result to *Page 549 the detriment of prior users." It appearing the exchange of water sought by Mahaffey and the bank "would result to the detriment" of the Pattees, and also that there were intervening water rights, this Court very properly and correctly, under the above-stated facts, ordered the issuance of a permanent writ of prohibition enjoining further action in the contempt proceedings. Furthermore, Daniels v. Adair, supra, was an original proceeding brought in this court to secure a permanent writ of prohibition enjoining Judge Adair from proceeding further in the matter of punishing Daniels and the Pattees for contempt because of their failure to comply with the injunction issued by Judge Adair in the case of Mahaffey and the Pioneer Bank and Trust Company against the Pattees commenced in the District Court as above pointed out. This court could not, it must be conceded, pass upon water rights in an original proceeding brought in this court to secure a permanent writ of prohibition; hence, and as above stated, Daniels v. Adair, supra, does not support appellants' contention. Finally, it will be further noted the question involved in the case at bar: Has an irrigation district power to enter into a contract with the United States whereby the United States may, at some future time, substitute an equal amount of Payette and Salmon River water for district Boise River water? was not involved inDaniels v. Adair, supra.
It must be kept in mind the contest in the case at bar is between appellant landowners within respondent district and the district itself; that the sole purpose of the contract in question is to provide much-needed additional water for the irrigation of the irrigated lands within the boundaries of the district, including appellants' lands, in the manner and as expressly authorized by statute; that the additional supply of water contracted for from Anderson Ranch Reservoir does not depend upon a possible later substitution of water; that such additional supply is assured in any event; that the proposed contract will not have the effect of reducing the amount of water to which any landowner within the district is entitled; that no landowner is compelled to surrender any right whatsoever; that in the event an exchange of water is later made, such water would be emptied into the Boise River at a point above the diversion works of the respondent district; that in the event an exchange of water takes place as provided in the contract under consideration, then and in that case, a landowner *Page 550 within the district, for instance, instead of receiving as at present, under the 1926 contract, 100 inches of the waters of Boise River, would receive a like amount of the waters of Payette and Salmon Rivers, and that such landowner would also receive his share of the Anderson Ranch Reservoir storage water contracted for, which would not, under the circumstances above stated, operate to the detriment of any landowner.
In Nampa Meridian Irr. Dist. v. Jas. G. Petrie et al.28 Idaho 227, 238, 153 P. 425, a case which also involved the confirmation of a contract between an irrigation district and the United States "to secure supplemental storage water for the purpose of furnishing an adequate supply of water to properly irrigate lands within said district," this court pointed out that:
"The dominant purpose of our irrigation district law is to facilitate the economical and permanent reclamation of our and lands, and it must be the constant aim of judicial construction to effectuate that purpose so far as consistent with the whole body of our law. The continued existence of an irrigation district depends upon its ability to furnish water to land owners within the district. * * * In the absence of * * * the right to furnish an adequate water supply * * *, the very purpose and object of the district would be thwarted and the growth and development of the state retarded to its serious detriment."
We conclude the judgment must be affirmed, and it is so ordered, with costs to respondent.