250 F. 304 | D. Nev. | 1913
I do not think the evidence is sufficient to justify the court in granting the temporary injunction. It is by no means-.clear that the water rates prescribed by the Commission in this case will be confiscatory. On the contrary, the charge made in the bill that such would be the case seems to me to be fully rebutted by the answer and its supporting affidavits.' The well-established rule is that ,on súdi'an 'application. for a temporary'injunction, if an answer undér oáth has been filed denying the equities df the bill, the temporary injunction will not issue, for the reason that the sworn answer is evidence on behalf of the defendant, and rebuts the allegations of the bill, and such allegations are therefore left at least doubtful.
But has the complainant a water right upon which it can fix a valuation of $500,000? I very much doubt it. The water which it claims as a water right is percolating water running through its.lands. I do not understand that percolating water passing under or through the soil is anywhere recognized as a water right having a valuation separate and distinct from the land. It is not in any sense surface water. It is not water appropriated from running streams; nor is it water the right to which is the same as that of a riparian owner. Percolating water is part and parcel of the soil, and it is as much a constituent element of the land as the mineral therein contained. Its value, if it has any, is therefore in the land, and cannot be separated from the land. It follows that in this case the value which the water has must be in the land. It may be that the complainant’s development of water upon this land has given it a largely increased value; but, if that is so, it appears to me that that should be the valuation of the land with its water content as a whole, and not as land with a water right attached. This may not make a great difference in the result; but it will enable the Commission and the court to make a comparison with other land of like character and similarly situated.
In any event, it is my opinion that the evidence now before the court is not sufficient to warrant the court in adding $500,000 to the value of the complainant’s land, and upon such a valuation hold that the water rate fixed by the Commission is confiscatory. Of course, there can be no question but that an investment in public utilities, like the property of a railroad company, a water company, or a gas company, should, under normal conditions, receive a fair and reasonable return, based upon the fair and reasonable valuation of the property or the capital invested. In the West, the development of water, like the development of gold, silver, or copper, may add enormously to the-
The inquiry we are now making is near the surface. We are not required to go into the question whether the Commission had the proper evidence before ,it in making its valuation. What the court holds is that the evidence now before this court is not sufficient to warrant the court in holding that the increased valuation claimed by the complainant should have been made by the Commission. We are of the opinion that such increased valuation has not been established by the evidence now before the court. In other words, the court is not prepared at this time to say that, considering all the material facts that have been brought to the attention-of the court, the water rates fixed by the Commission are not fair and reasonable.
The facts before me are insufficient to warrant my granting the temporary «injunction asked for. The restraining order will therefore be discharged, and the temporary injunction denied; but, as I have before stated, this does not finally settle the decree in the case. The facts supporting a final decree will have to be found by a trial of the issues involved. I am simply deciding the question now as to whether or not the present restraining order should be discharged, and the application for a temporary injunction denied. One of the principal questions to be yet decided is whether or not a water right can be attached to percolating water, which is a part and parcel of the land. Is it to be deemed the same as an independent water right arising out of appropriation or riparian ownership ? It seems to me that it would be difficult to establish an absolutely independent water value aside from the value of the land; but the value of the water with the land may be ascertained in the view of its available uses.
I have no reason to doubt that the Public Service Commission, in dealing with this matter, has been actuated by a spirit of fairness, and
The clerk will enter an order, in conformity with these views, that the restraining order will be discharged, and the application for a temporary injunction denied.