74 



THE IRKIGATION AGE. 



grant any relief upon the facts stated in the com- 

 plaint, and that on the evidence the order was 

 erroneous. Counsel for the appellants argue that 

 the association was not a proper party plaintiff 

 because it had no interest in the suit and was not 

 one of a numerous class having a common interest 

 in the subject of the suit within the meaning of 

 Rule 38 in Equity. But Rule 37 in Equity provides 

 that a party with whom and in whose name a 

 contract has been made for the benefit of another 

 may sue in his own name without joining that 

 other. On October 25, 1905, the United States 

 made a contract with this association for the benefit 

 of those who held or should thereafter hold water 

 rights under the Belle Fourche project to the effect, 

 among other things, that only those who were or 

 should become shareholders of the association 

 should be accepted as entrymen of homesteads on 

 the public domain included within the project, or 

 as applicants for rights to the use of water pro- 

 vided for irrigation thereunder, that the payment 

 for water rights to be issued to the shareholders of 

 the association should be divided into not less than 

 ten equal payments, the first whereof should be 

 payable at the time of the completion of the pro- 

 posed works, or within a reasonable time there- 

 after, that the cost thereof should be apportioned 

 equally per acre among those acquiring such rights, 

 that the association would collect and pay to the 

 United States and did guarantee the payment of 

 that part of the costs of the works that should be 

 apportioned to each of its shareholders and that 

 parties otherwise eligible might, on the designation 

 of the Secretary of the Interior, become members 

 of the association. In the rules and regulations 

 promulgated by the Secretary through the Director 

 of the United States Reclamation Service we read, 

 "The execution of the contract between the Water 

 Users' association and the Secretary of the Interior 

 may be regarded as the completion of the organiza- 

 tion of the Water Users' association. . . . The 

 execution of this contract formally fixes the relation 

 of the association to the government as the repre- 

 sentative of the water users as a medium of com- 

 munication between the water users and the gov- 

 ernment." It is to prevent the violation of the law 

 applicable to the construction and execution of the 

 foregoing contract and the alleged irreparable in- 

 jury to the shareholders of the plaintiff and to the 

 plaintiff that may result from such violation that 

 this suit was instituted. The contract was made in 

 the name of the corporation for the benefit of its 

 shareholders, who number about six hundred, and 

 the association was clearly the proper party plain- 

 tiff under Rule 37 in Equity, and also because as 

 contractor to collect and as guarantor of the pay- 

 ment of the lawful charges against its shareholders 

 for the cost of the works and the use of the water 

 and as the holder of the first lien upon the property 

 of these shareholders under the laws of South 

 Dakota, 1909, page 155, upon their water rights 

 respectively, for the repayment of their deferred 

 payments which it should pay, it had a vitaj interest 

 in preventing the levy or collection of unlawful 

 charges against them, or their deprivation of their 

 water rights or their property because they failed 

 to pay such charges. 



Did the amended complaint state facts sufficient 

 to invoke the jurisdiction and power of a court of 

 equity to grant relief? In the discussion of this 

 question the allegations of the complaint must be 

 taken to be true. Material averments of the com- 

 plaint were that these were the facts : The share- 

 holders of the plaintiff had applied for water and 

 had been accepted as water users under the Recla- 

 mation Act, the contract of October 25, 1905, and 

 written applications in accordance with its terms. 

 They were either the owners of lands whose title 

 had been vested in them or homesteaders upon 

 public lands irrigable under the project and the 

 owners of water rights for use upon such lands. 

 The project was conceived prior to 1905 and since 

 that time the government has been constructing, 

 but has never completed the works. The contract 

 of 1905 provided that the payments for the water 

 rights to be issued to the shareholders should be 

 divided into not less than ten equal payments, the 

 first of which should be payable at the time of the 

 completion of the works or within a reasonable 

 time thereafter. Before these works were com- 

 pleted and for each of the years 1908, 1909, and 

 1910, the defendants demanded of the shareholders 

 payment of an installment of $3.00 per acre of their 

 alleged irrigable land on account of the construc- 

 tion of the works and the payment of 40 cents per 

 acre of such land on account of the operation and 

 maintenance of the works and before the works 

 were completed for each of the years 1910 and 1911 

 they demanded the payment of $3.00 per acre of 

 their irrigable land for construction and 60 cents 

 per acre of such land for operation and mainte- 

 nance. The lands of the shareholders on account 

 of which these payments were demanded amounted 

 to about 12,000 acres for the year 1908; about 

 12,000 acres for the year 1909, about 35,000 acres 

 for the year 1910, and about 47,000 acres there- 

 after. Notwithstanding the demand of these 

 charges, water sufficient to irrigate these lands was 

 not furnished in 1908, 1909, 1910, or 1911. The 

 shareholders occupied these lands, prepared them 

 for crops and seeded them, but the crops generally 

 failed from lack of water and the shareholders gen- 

 erally lost much of their labor and expense. The 

 defendants demanded of the shareholders 60 cents 

 per acre of their irrigable land for operation and 

 maintenance for the year 1913. This charge was 

 made up in part of charges for services and other 

 expenses not incurred or made in connection with 

 the Belle Fourche project. Many thousands of dol- 

 lars had been charged against the shareholders on 

 account of the salaries of a large and expensive 

 administration force annually as a part of these 

 operation and maintenance charges. The defend- 

 ants were attempting to collect of the shareholders 

 as a part of these operation and maintenance 

 charges about $78,000 as betterments which were 

 and are in reality a part of the expense of construc- 

 tion and are included within the $3.00 per annum 

 per acre for the ten years amounting to $30.00 per 

 acre, to which amount many of the shareholders by 

 their accepted applications limited their liability for 

 the construction of the works. During these years 

 many of the shareholders paid some of the fore- 

 going charges although they deemed them illegal 



