230 F. 284 | E.D. Wash. | 1916
The West Side Irrigating Company was organized and created under the laws of the territory of Washington on the 5th day of June, 1889, for the purpose of constructing ditches and flumes to convey water from the Yakima river to- irrigate lands and water stock in the West Kittitas valley, Kittitas county, Washington Territory. The original incorporators and stockholders were farmers owning lands under the line of the proposed canal, whose chief object was to obtain a supply of water to irrigate their farms and for stock and domestic purposes. * The corporation thus formed has no income and pays no dividends. Each stockholder is entitled to divert and use the water conducted through the canal in proportion to the amount of his capital stock, and contributes to the expense of maintaining and repairing the canal in the like proportion. In other words, the corporation is a mere agency to construct, maintain, and repair the canal, and to conduct and distribute water through the same for the use and benefit of its stockholders. Construction work on the canal
During the year 1905 the government had under contemplation the construction of storage reservoirs and irrigation works in the Yakima valley under Act Cong. June 17, 1902, c. 1093, 32 Stat. 388 (Comp. St. 1913, §§ 4700-4708), commonly known as the “Reclamation Act,” and had withdrawn or appropriated all of the then unappropriated waters of the Yakima river and its tributaries under the act of the Legislature of the state of Washington of March 4, 1905 (Laws 1905, p. 180), 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 * * * wafers of the state, relating to water users’ associations, and declaring an emergency.” The Secretary of the Interior refused to approve the plan commonly known as “the Tieton and Sunnyside projects,” or to enter upon the-construction of irrigation works or storage reservoirs in the Yakima valley, except upon compliance with certain conditions among which were the following:
“First. The adjustment of all conflicting claims of those who are appropriating water from the Yakima river or any other body of water, for irrigation power, or any other purpose.
“Second. The determination of all suits now pending to prevent the diversion of water from the Yakima river to the Yakima Indian reservation, and any and all other litigation that in any way tends to embarrass or restrict the appropriation of the waters from said river or any other body of water needed for the irrigation of the lands under said proposed projects.”
The attitude of the government was explained to the water users of the Kittitas and Yakima valleys by officers or representatives of the Reclamation Service, and local committees were appointéd to obtain a satisfactory settlement and adjustment of all claims to water from the Yakima river and its tributaries to meet the demands and requirements of the Secretary of the Interior. At the instance of one of these committees the defendant company signed the following agreement:
“The West Side Irrigating 'Company to Public.
“Between the Appropriator Taking Water from the Yakima River and Its Tributaries.
“Whereas, the Reclamation Service of the United States has been requested to investigate the water resources of the Yakima watershed with a view to the further development and increase of irrigation therein, under the provisions of the act of Congress approved June 17, 1902 (32 Stat. 388), known as the Reclamation Act; and whereas, the officers of the Reclamation Service in a preliminary investigation have found that in all the low-water flow of the Yakima river and its tributaries has been appropriated and is now*287 being diverted by the various canals within said watershed, and that in order to irrigate additional lands within said watershed it will be necessary to store the surplus waters of the flood season; and whereas, no irrigation project to be undertaken by the United States within the said watershed can be recommended as feasible unless the quantity of water to which each present user from the Yakima river and its tributaries is entitled be first definitely ascertained and agreed to; and whereas, the undersigned claim certain quantities of water from the Yakima river and its tributaries, and are willing to limit their claim to the said waters to the quantities of water designated in the following schedule:
“Now, therefore, in order to avoid litigation, to encourage the storage of water in the Yakima watershed, and to secure the indirect benefit derived from further irrigation through federal enterprise, each subscriber to this agreement or to a copy thereof, differing only as to the quantities of water specified, agrees to limit and hereby does limit its respective lights of appropriation from said Yakima river and its tributaries to the above-specified amounts: Provided, that it is hereby understood and agreed that the Limitation of water rights as herein specified is made as a compromise, in order to secure the benefits above referred to, and shall not bind any party hereto in any event, unless the determination to construct storage and irrigation works by the United States under the Reclamation Act shall be announced by the Secretary of the Interior within two years from the date upon which he is furnished with properly authenticated copies of the agreements of this form duly executed by or on behalf of such proportion of the claimants of tlie waters of the Yakima river and its tributaries as shall be satisfactory to the Secretary of the Interior.
“In witness whereof, the undersigned has caused these presents to be executed in its corporate name, by its president, and attested by its secretary, and its corporate seal to be affixed, by authority of its board of directors, heretofore duly made and entered this 21st day of October, 1905.
“The West Side Irrigating Company,
“By Mitchell Stevens, Vice President.”
The determination to construct storage and irrigation works in the Yakima valley was announced soon after the execution of the above agreement, and well within the two years specified, and the government has expended .upwards of $8,000,000 in the construction and maintenance of such works since that time. The present suit was instituted to restrain the defendant from diverting water from the Yakima river in excess of the quantity set forth in this so-called limiting agreement, and the case is now before the court for final hearing on testimony taken before a commissioner appointed for that purpose.
It is conceded throughout the testimony that the defendant has diverted water from the river in excess of 80 cubic feet per second of time, and it asserts the right to do so upon three grounds: First, because the limiting agreement was ultra vires and void; second, because
“Motion by W. A. Stevens, seconded by .T. N. Burch, that the stockholders of the West Side Irrigating Company make claim to the government Reclamation Burean to 4,000 inches of the waters of the Yakima river, and the board of trustees to notify Splawn and Ellison to make their claims to water to tlow through the company’s canal, and in case they do not make their claim the board of trustees to claim 1,000 inches for Splawn and Ellison.”
It may here be stated by way of explanation that the claims of Splawn and Ellison are in no wise connected with the present claim of the defendant company. The object and purpose of the government was to ascertain and fix the quantity of water diverted from the river, not the quantity actually used for the purpose of irrigation. Water lost by seepage or evaporation while flowing through the canal was as much lost to the government as the water actually used for the purpose of irrigation. True, no doubt, some of the seepage water found its way back into the river; but that is equally true, though perhaps to a less extent, of water actually used for irrigation. But the main point is that the purpose of the government was unquestionably to fix the amount of the diversion at the point of diversion. No man of average intelligence could have understood otherwise, and a reading of the record convinces me that the officers and stockholders of the defendant company measure up to that standard.
Furthermore, the purpose of this agreement was not to fix or establish existing rights, but to fix and prescribe the rights which the defendant company would have and exercise in the future. The defendant was under no obligation to sign the agreement or to relinquish any rights it might have, and the government was under no obligation to take up irrigation works in the Yakima valley. Both parties, how
“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.” U. S. v. Union Gap Irrigation Co. (D. C.) 209 Fed. 274.
In that case a diversion after the 1st of July of each year was. restrained; the court finding that prior to that time no prejudice would result to the government. It may be that in exceptional years the date thus fixed will be too late; but the decree should be definite and certain, and probably that date could be ¿ixed upon arbitrarily, the court reserving the right to modify the decree whenever exceptional circumstances require a modification. This question can be determined, however, when the final decree is submitted for the approval of the court.
Let a decree be prepared accordingly.