277 F. 373 | 8th Cir. | 1921
(after stating the facts as above). The attempt of the plaintiff tp deepen what is called in the evidence Bitter creek, in accordance with its plans for draining the Garland division of its Shoshone project,’together with the attempts of-the defendants to make worthless lands worth $250 per acre at the expense of the plaintiff, are the chief causes of this litigation. The Reclamation Act provides that all proceedings thereunder on the part of the plaintiff shall be in accordance with the laws of the state in which the proceedings are had, and so far as we have been able to learn from the record the plaintiff has complied with the laws of Wyoming in the construction of its reclamation project, including reservoirs, diversion dams, canals, and laterals. We are of the opinion that, in the consideration of a case such as the one before us, a broad view of the situation is necessary, in order to carry out, if lawfully permissible, the.great object which the plaintiff had in view in enacting legislation which permits it, with its great resources, to reclaim arid and semiarid lands for cultivation. It is a work that could not be done, or at least would not be done, by private effort.
On the face of the record it would seem that the defendants, whose lands have been increased in value from nothing to $250 per acre by the construction of the Shoshone project, were willing to receive this benefit without contributing anything therefor. They claim, however, that they are acting clearly within their legal rights. If so, they must prevail as against the claims of the plaintiff. There are two large questions to be considered in the determination of the rights of the parties:
(1) Is or was Bitter creek ever a natural stream within -the meaning of those words as used in article 8, § 1, Constitution of Wyoming, which reads:
“The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.”
Coming, now, to the question as to whether the plaintiff had a right of 'way over and through the lands of defendants for the purpose of constructing a ditch, in order to carry out its drainage plan and the collection and diversion of its waste, seepage, and percolating water escaping from its Shoshone project, we are of the opinion that the-reservations in the patents from the United States and in the conveyances executed by the state of Wyoming to the defendants for lands in section 36, supra, were valid reservations of a right of way for the purpose mentioned and that the plaintiff was not a trespasser in entering upon defendants’ lands for the purpose of deepening Bitter-creek. The act of Congress of August 30, 1890, and the act of the Eegislature of Wyoming approved February 21, 1905, so far as material, are set forth in the statement of facts; also the reservations in the patents and deeds of conveyance. We are satisfied that the legislation on the part of Congress-and the state of Wyoming was enacted in order to assist the plaintiff in carrying out the Reclamation Act, although the latter act was passed after August 30, 1890. The Eegislatures of other states having arid lands passed acts similar to the-one passed by the state of Wyoming. Such statutes were enacted in-1905 in Idaho, Montana, Nebraska, Nevada, Oregon, Utah, Washington, and in 1907 by California, New Mexico, and South Dakota, and in 1909 by Colorado.
The permits granted by the state of Wyoming to the defendants could not authorize the defendants to take the waters of the plaintiff, and, as Bitter creek was not a natural stream, said permits gave no authority to take water from Bitter creek. No one ever applied for such permits until the plaintiff had at a great expense brought water from the Shoshone reservoir- to the vicinity of the lands in question, and it is fair to presume that no permits would have been asked for, if the irrigation project had not been developed by the plaintiff. The law is clear, in our opinion, that the plaintiff had the right to save and
“In point of law the general principle upon which the plaintiff relies is scarcely open to controversy; one who by the expenditure of money and labor diveris appropriable water from a stream, and thus makes it available for fruitful purposes, it entitled to its exclusive control so long as he is able and willing to apply it to beneficial uses, and such right extends to what is commonly known as wastage from surface run-off and deep percolation, necessarily incident to practical irrigation. Considerations of both public policy and natural justice strongly support such a rule. Nor is it essential to Ills control that the appropriator maintain continuous actual possession of such water. So long as he does not abandon it, or forfeit it by failure to use, he may assert his rights. It is not necessary that he confine it upon his own land or convey it in an artificial conduit. Tt is requisite, of course, that he he able to identify it; but, subject to that limitation, he may conduct it through natural channels, and may even commingle it or suffer it to commingle with other waters. In short, the rights of an appropriator in these respects are not affected by the fact that the water has once been used. U. S. r. Ramshorn Ditch Co. (D. C.) 254 Fed. 842; Ramshorn Ditch Co. v. U. S. (C. C. A.) 269 Fed. 80: McKelvey v. North Sterling Irr. Dist., 66 Colo, 11, 179 Pac. 872; Lambeye v. Garcia, 18 Ariz. 178, 157 Pac. 977; Hagerman Irr. Co. v. East Grand Plains D. D., 25 N. M. 649, 187 Pac. 555; Griffith v. Cole et al. (D. C.) 264 Fed. 369; Twin Falls Canal Co. v. Damman (this court, No. 689) oral decision rendered September 19, 1919, filed August 20, 1920.
“An application of the general rule, as discussed, to the undisputed facts leaves no room for doubt of the right of the plaintiff to follow the wastage from this storage water so far as it can bo identified. Clearly, it has never intended to relinquish such rights, nor is there any ground upon which to rest a finding of forfeiture. The reservoir was not completed and put into service until 1915, and at that time the plaintiff’s distributing system was so constructed and it had done such work on the channel of the creek as to enable it to pick the water up and send it on for use on project lands in the Nampa & Meridian irrigation district, In any possible view of the law, defendant’s interference was not so continuous or of such character as to confer upon him any right to such water, or to divest the plaintiff of any right; nor as to this water is there any substance in fact to the defense of estoppel.”