209 F. 274 | E.D. Wash. | 1913
It appears from the bill of complaint in this case that the plaintiff has examined, surveyed, located, and has now in active operation extensive irrigation works for the storage, diversion, and development of water for the reclamation of arid and semiarid lands in Yakima county, under Reclamation Act of June 17, 1902, c. 1093, 32 Stat. 388 (U. S. Comp. St. Supp. 1911, p. 662); that the plaintiff has availed itself of the provisions of the act of the Legislature of the state of Washington, entitled, “An act relating to the appropriation of waters of the state for irrigation purposes, granting to the United. States the right to exercise the. power of eminent domain in acquiring lands, water and other property for rights of way, and for reservoirs and other irrigation works, granting to the United States certain rights in state lands and in the waters of the state, relating to water users’ associations, and declaring an emergency,” approved March 4, 1905 (Laws of 1905, p. 180), and. by virtue thereof did, on- the 10th day of May, 1905, appropriate all of the unappropriated waters of the Yakima river, and has appropriated large quantities of water in Yakima -county, which are being distributed,
The rights acquired from Ellison and Taylor, or more particularly the right of the defendant to change the point of diversion of these waters from Kittitas county to Yakima county, is the main question at issue. The right of the plaintiff to maintain this suit is beyond question. Aside from any rights it may have acquired under the legislative act of 1905, it acquired by purchase from the Washington Irrigation Company, on the 23d day of June, 1906, the Sunnyside Canal, having its intake below Union Gap in Yakima county, together with an appropriation of 1,000 cubic feet of water per second of time, made by the Northern Pacific, Yakima & Kittitas Irrigation Company on the 22d day of April, 1891, and it has a manifest right to protect this appropriation and the rights acquired thereunder by injunction. It further appears from the testimony, to my satisfaction, that for a number of years last past, during, the months of July, August, and September, there has been a shortage of water in the river at the intake of the Sunnyside Canal, so that the government and its predecessor in interest could not avail themselves of the full amount of their appropriation, or of all the water to which they were entitled. This fact is so notorious that the court might perhaps take judicial notice of it, but in any event it is fully supported by the testimony.
It was suggested in argument that the West Side Irrigation Company is entitled to 80 cubic feet of water per second of time as against the plaintiff, and that the defendant claims its rights through mesne conveyances from that company, and this in a measure is true, but there is nothing in the record to indicate that the defendant has any other or greater rights than had its predecessor in interest. Certainly Ellison never asserted or enjoyed any other or different rights than I have already indicated, and the defendant as his successor in interest occupies no better position. The mere permissive user of the water for the brief period since the transfer confers no right in law.
The only remaining question in the case is the relief to which the plaintiff is entitled. The government, like an individual, can appropriate only so much water as it applies to beneficial uses, and can only restrain a diversion which operates to its prejudice. Under the testimony in the case I am inclined to the opinion that the diversion of the amount of water claimed by the defendant will work no prejudice