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IRRIGATION (Continued).

over to the water right purchasers as provided by such contracts.
(Child v. Neitzel, 116.)

4. The fact that the purchasers of such water rights authorized
the Murphy company to assign them does not estop them from set-
ting up as a defense against the payment thereof that said system
has not been completed as required by said contracts. (Childs v.
Neitzel, 116.)

5. Mortgagees or assigns of irrigation project corporations can
acquire no greater interest in such project or water right contracts
connected therewith than such corporations have. (Childs v. Neitzel,
116.)

6. Sec. 15 of art. 11 of the state constitution prohibits the legis-
lature from passing any law which would permit the leasing or
alienation of any franchise so as to release or relieve such fran
chise or property held thereunder from any liabilities of the lessor
or grantor or lessee or grantee, contracted or incurred in the opera-
tion, use or enjoyment of such franchise or any of its privileges.
(Childs v. Neitzel, 116.)

7. Under the provisions of sec. 2 of art. 15 of the constitution,
the right to collect rates or compensation for the use of water is a
franchise and cannot be exercised except by authority of and in
the manner prescribed by law. (Childs v. Neitzel, 116.)

8. Sec. 1 of art. 15 provides that the use of all water now ap-
propriated or that may hereafter be appropriated for sale, rental
or distribution is a public use, subject to the regulation and control
of the state in the manner prescribed by law. (Childs v. Neitzel,
116.)

9. The Murphy Land & Irrigation Company is a public service
corporation. (Childs v. Neitzel, 116.)

Deferred Payments-Payment of to Receiver.

10. Held, under the water right contracts involved in this case,
the deferred payments for such water rights do not become due
until water is made available for the reclamation and irrigation of
the lands as provided by the terms of such contract; and when the
water is made so available, the deferred payments become a lien on
the land and the water right. (Childs v. Neitzel, 133.)

11. Held, that where a water contract holder pays any part or
the whole of the deferred payments to the receiver, under the order
of the court, he is entitled to a credit on such contract for the
amount paid. (Childs v. Neitzel, 133.)

Right of Way for Irrigation Ditch-Parol License.

12. A parol license for a right of way for a ditch, if sought to
be declared perpetual, would be an easement or interest in real

IRRIGATION (Continued).

property, which can only be created by operation of law, or a con-
veyance or other instrument in writing, subscribed by the party
sought to be charged. (McReynolds v. Harrigfeld, 26.)

13. Held, that where the evidence fails to disclose that licensees
have expended considerable money or made valuable improvements
in reliance upon a parol license for a right of way for a ditch, and
fails further to show that benefits or advantages have accrued to
licensors thereunder, this court will not "by operation of law"
declare such parol license an easement and not within the inhibition
of sec. 6007, Rev. Codes. (McReynolds v. Harrigfeld, 26.)

14. If parties are placed in their original position and with their
original rights, they are "in statu quo." (McReynolds v. Harrig-
feld, 26.)

Foreclosure of Carey Act Lien-Contracts Between State and Irrigation
Company and Company and Settler.

15. In an action to foreclose a Carey Act lien under the provi-
sions of sec. 1629, Rev. Codes, it is not necessary to allege in the
complaint that the entire irrigation system has been completed,
if it appears from the allegations of the complaint that an ample
supply of water has been made permanently available for the
tract of land upon which the lien is sought to be foreclosed, to
the extent that the contract of the irrigation company to furnish
such supply to the land in question has been fulfilled. (Idaho Irri-
gation Co. v. Pew, 272.)

16. Sec. 1629, Rev. Codes, conferring a lien on land and water
for water furnished to land, and the amendment to the federal
Carey Act (29 U. S. Stats. at L., p. 435), authorizing the state
to create a lien on the land, must be construed together, and the
lien cannot attach until the provisions of both acts have been com-
plied with. (Idaho Irrigation Co. v. Pew, 272.)

17. The amendment to the federal Carey Act in fixing the amount
of the lien upon the land to be created by the state at "the actual
cost of reclamation and reasonable interest thereon from the date
of reclamation until disposed of to actual settlers," contemplates
the determination of such cost by the state, and that in a con-
tract between the state and a corporation for the construction of
irrigation works, such cost must be estimated or determined in
advance as a basis for the contract between them. (Idaho Irrigation
Co. v. Pew, 272.)

18. In a contract between a Carey Act irrigation company and a
settler, in which, by reference, the terms and conditions of the
contract between the state and the irrigation company are assented
to, and the price of water rights is fixed upon the basis of the
estimated cost of the works contained in the state contract, both

IRRIGATION (Continued).

the company and the settler are estopped from afterward raising
the question as to whether such estimated cost is the actual cost
of the works. (Idaho Irrigation Co. v. Pew, 272.)

19. In a suit to foreclose a Carey Act lien the cause of action
arises under the state statute, and it is not necessary to allege
in the complaint that a requirement of the federal statute, not
contained in the state statute, has been complied with. (Idaho Irri-
gation Co. v. Pew, 272.)

(Idaho

20. Held, that the complaint in this case is not demurrable on
the ground of being ambiguous, unintelligible or uncertain.
Irrigation Co. v. Pew, 272.)

Taxpayer Estopped—Irregularity in Bond Issue.

21. Where it is shown that a land owner within an irrigation
district seeks to avoid the payment of assessments levied against his
land by the district because of alleged irregularities or infirmities
in the issue of bonds, and who, with full knowledge of such alleged
defects or infirmities, has, by his silence, acquiesced in the expendi-
ture of the fund derived from the sale of said bonds, and who has
had knowledge that said bonds were passing into the hands of bona
fide purchasers, held, that he will be estopped by his laches from
being heard to object to the payment of such assessments. (Page
V. Oneida Irrigation District, 108.)

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1. Where a defendant has been sued in a state court and sum-
mons has been served upon him, and, prior to the expiration of the
term within which he is required to answer under the statute and
without appearing or answering, he files a petition for a removal
to the federal court, and an order denying the removal is made by
the state court, and the record is thereafter transferred by the
defendant to the federal court, when on motion in the latter court

JUDGMENT (Continued).

the cause is remanded to the state court for want of jurisdiction
in the federal court, and the clerk of the district court enters the
default of the defendant for failure to appear and answer; held,
that the action of the clerk in entering the default of the de-
fendant is regular and valid, and within the authority and direction
of secs. 4140 and 4360, Rev. Codes, and that such default is not
void for want of jurisdiction. (State v. American Surety Co., 652.)

2. Where the default has been entered by the clerk against the
defendant, as was done in this case, the court has jurisdiction to
hear the proofs submitted by the plaintiff and to enter judgment
thereon. (State v. American Surety Co., 652.)

3. Under the above facts, where the defendant moves to have
the default vacated on the ground of inadvertence, surprise or ex-
cusable neglect, held, that under the excuse presented and the facts
of this case, as shown by the record, the trial court did not err in
refusing to set aside said default. (State ▼. American Surety Co.,
652.)

4. Sec. 4140, Rev. Codes, fixes the time within which a defend-
ant shall appear and answer, and the fact that prior to the expira-
tion of that time the defendant undertook to have the cause re-
moved to the federal court and it was thereafter remanded, such
action on the part of the defendant to change the forum will not
serve to extend the time for answer in the state court and will not
relieve the defendant from a default which it thus allows to be
entered against it. (State v. American Surety Co., 652.)

4a. Held, under the facts of this case, that the default was not
prematurely entered. (State v. American Surety Co., 652.)

4b. In case the defendant fails to appear, answer, demur or
otherwise plead within the time prescribed by statute, the district
judge has jurisdiction and power at chambers to enter a default
and to hear testimony thereon and to enter judgment. (Washington
County Land & Development Co. v. Weiser National Bank, 717.)

5. In case the defendant fails to answer, the trial court is with-
out power to grant relief not demanded in the complaint, and if
there be no prayer accompanying the complaint and no relief de-
manded, no judgment can be entered in favor of the plaintiff.
(Washington County Land & Development Co. v. Weiser National
Bank, 717.)

Setting Aside in Equity.

6. Held, under the law and evidence, that the court erred in
setting aside the judgment sought to be set aside by this action.
(Fales v. Weeter Lumber Co., 367.)

JUDGMENT (Continued).

7. One who seeks equity in a court of conscience must do equity
before any relief will be granted. (Fales v. Weeter Lumber Co.,
367.)

8. Where an equitable action is brought to vacate a judgment
upon the ground that it was obtained without jurisdiction, it must
appear that the judgment sought to be set aside is inequitable and
unjust, and that plaintiff has a good defense thereto. (Fales v.
Weeter Lumber Co., 367.)

9. If a judgment is regular on its face, it will never be opened
up merely for the purpose of letting in the defense of the statute
of limitations. (Fales v. Weeter Lumber Co., 367.)

Of Checks.

LARCENY.

1. Upon a prosecution for larceny of a check for a certain amount
of money, no proof of actual value is required, according to the
provisions of sec. 7053, Rev. Codes, as the law presumes that the
face value of the check is the actual value. (State v. Bogris, 587.)

2. In a prosecution for the larceny of certain checks it is not
incumbent upon the state, for the purpose of establishing the value
of the checks stolen, to offer proof of their due execution by the
payer, or to prove the fact that they were never indorsed by the
payee. (State v. Bogris, 587.)

3. Held, that Exhibits "A" and "B," consisting of checks charged
to have been stolen by the defendant in this case, and to have been
indorsed by him with the name of the payee, were admitted in evi-
dence in the first instance, not for the purpose of comparison of
handwriting, but for the purpose of establishing the crime committed.
(State v. Bogris, 587.)

7. The following instruction, "Where the state proved such a case
as would sustain a verdict of guilty, and the defendant then offers
evidence, the burden of proof is on said defendant to make out his
defense, and when the proof is all introduced then the primary ques-
tion is, in the light of all the evidence, is the defendant guilty beyond
a reasonable doubt," is not prejudicial to the defendant, by merely
making it incumbent upon him to offer sufficient proof to raise a
reasonable doubt in the minds of the jury as to his guilt. (State v.
Bogris, 587.)

9. In giving the following instruction, the trial court did not tres-
pass upon the right of the jury to pass upon all questions of fact,
in accordance with the provisions of subd. 6, sec. 7855, Rev. Codes:

"You are further instructed that if you believe from the evidence
beyond a reasonable doubt that the property described in the in-
formation was stolen and that the defendant was found in the posses-
Idaho, Vol. 26-584)

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