245 F. 30 | 9th Cir. | 1917
The defendants below are appealing. The Land & Water Company heretofore entered upon a project, under the Carey Act of Congress (Act Aug. 18, 1894, c. 301, § 4, 28 Stat. 422 [Comp. St. 1916, § 4685]), for acquiring and impounding water from Goose creek and its tributaries, and distributing it to users. Goose creek takes its rise in the state of Nevada, and crosses the state line into Idaho, and by the project the water is impounded ”in the latter state. In support of their water rights, the plaintiffs claim that they purchased certain rights from various users of the waters of Goose creek, which they assert are prior and superior to the rights of all other persons taking water from the stream; also that they acquired the right to the use of 500 second-feet under permit from the state, of date March 27, 1908, and an additional amount of 1,000 second-feet under permit of date March 10, 1909, which rights are prior and superior to all rights acquired subsequently to the respective dates of their appropriations.
The defendant Vineyard Land & Stock Company, by its answer, claims, on the other hand, that, long prior to any such appropriations of water from Goose creek or its tributaries, its predecessors in interest appropriated water therefrom for the irrigation of approximately 2,000 acres, with a diversion of about 40 second-feet, and that at the present time it has under irrigation about 4,000 acres, with a diversion of approximately 80 second-feet.
This presents the issues of fact. The questions of law are much the same as were in controversy in the case of Vineyard Land & Stock Co., Appellant, v. Twin Falls Salmon River Land & Water Co. and Salmon River Canal Co., Limited, Appellees, 245 Fed. 9, — C. C. A. —, No. 2885 on this docket, decided contemporaneously with this case. One additional question is presented here by an amendment to the answer, namely, that there is a defect of parties, in that there are numer
"In other words, that we are the owners of whatever rights we have on our side, and that you are the owners of whatever rights those people [referring to the early-day settlers] may have had on your side.”
We do not understand that this stipulation is a waiver of such primary proofs. But, considering the nature of the rights to be established and the great lapse of time that has intervened, we are satisfied that the proofs made are quite sufficient upon which to deduce their acquirement by the early-day settlers. Certain decrees of the District Court of the Third Judicial District of the Territory of Idaho, two ip number, were offered and received in evidence. The first of these bears date September 10, 1886, and the second March 19, 1892. These decrees purport to settle certain water rights between the parties litigant, there being a large number of them. These water rights are the same as the early-day settlers are supposed to have acquired by diversion from Goose creek. The defendants in this case were not parties to either of such causes.
Benjamin Howells, who was produced as a witness for plaintiffs, relates that he first went to the vicinity of Oakley in 1878, and was there in 1880, 1881, and 1888, and distributed the waters of Goose creek as watermaster. Referring to a map (Plaintiffs’ Exhibit 12), he was able to recognize the several canals and ditches taken out of Goose creek, and to locate the lands upon which the water was used. He says:
“In 1888 I distributed the waters on Goose creek over most all of the country -shown in green on Plaintiffs’ Exhibit 12. I would approximate the acreage at 6,000 to 6,500 acres; perhaps not all irrigated that year, but as much as could be with the supply of water we had.”
Then he goes on to state the number of acres irrigated in 1878, 1879, 1880, and so on. He says, further:
“People were coming into the country and developing it, in small tracts at first, and then increasing, and along as the settlement grew older more people carné in. * * * The waters of Goose creek and its tributaries were used by these farmers from year to year. In 1888 and subsequent years many of the ditches were able to carry much more water than we had for them. * * * There was about 6,500 acres effectively cultivated. * * * Prior to the construction of the reservoir system the people began irrigation as soon as possible in order to get their hay lands, alfalfa lands, and so on irrigated up as early as possible in the spring.”
By the decrees one is enabled to ascertain the names of the users, where diversion was made, and the amount of water claimed, so- that but little remains to conjecture. When we consider that water rights are acquired by diversion and use, here is ample evidence of diversion and use which continued for a considerable space of time, and, while there is no one to say that he on such a date opened a ditch, and took out a certain quantity of water, and applied it to a certain tract of arid land for producing crops, the fact does appear, to the satisfaction of any candid mind, that the water was diverted by settlers and devoted to a useful purpose, and these settlers claimed water rights by reason thereof, and plaintiffs are their successors in right and interest. The decrees make that specific which otherwise would remain indefinite and uncertain.
It is further insisted that the court erred in its findings touching the quantities of water granted in pursuance of these early settlers’ rights, and the dates of the inception of such rights. The evidence respecting these matters is voluminous, and a discussion of it in detail cannot well be embodied in an opinion of reasonable length. Suffice it to say, therefore, that we have carefully examined the whole of such testimony, and fully concur in the findings of the trial court. The same conclusion has been reached as to the quantities of water awarded the defendant Vineyard Band Sr Stock Company, and the dates of the inception of the rights to which they pertain.
All this water was regularly used on the area which was then in cultivation under the project. So that no water has been allowed to go to waste, and there has at no time been any surplus water which the Land & Stock Company would be entitled to for use by reason of its deferred appropriation.
The plaintiffs’ project contemplates the irrigation of 50,000 acres, and they are entitled to their appropriations sufficient for the purpose. The court, however, has dealt with a theory, and not a condition, and this presumably because of the fact that all the waters of Goose creek and its tributaries were being employed for a useful purpose. Nor can it be anticipated that the quantity to be had from the source specified will ever be sufficient to supply the reasonable needs of plaintiffs under their project, even at the rate of 1% acre-feet to the acre. But, as we say in case No. 2885 :
“Under a project like this, ten years is allowed within which to make the diversion and proof thereof for a beneficial use. The appropriation is contingent upon the use, of course, but in the larger projects the appropriation speaks as of the date of the license, though, if not applied to a beneficial use within ten years, it lapses. In the meantime no one will be deprived of the use of the water not reduced to a beneficial use under the project.”
We find no reason for modifying the decree in pursuance of the exception.
The next error assigned is in respect to the provisions of the decree “intended to operate upon property and rights and to regulate the internal affairs of appellant ill a foreign state.” This subject has been fully treated of in-case No. 2885, and what is said there has pertinent application here.
Decree affirmed.
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