UNITED STATES v. IDE et al., 277 F. 373

GARLAND, Circuit Judge (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.”

(2) Had the United States a right of way through or across the lands of defendants to construct a ditch as a part of its drainage system in the Garland division of its Shoshone project, for the purpose of draining • seeped lands, collecting waste and percolating water arising from its project, and diverting the same for beneficial use in connection with its reclamation project? Upon the first proposition we are of the opinion that the evidence falls far short of showing Bitter creek ever to have been a natural stream.

No one, prior to the time that water first commenced to run in the creek as the result of the construction of the Shoshone project, ever applied for a permit to use any of the water of the creek, and there is no substantial conflict in the testimony to the effect that there was no water in the creek after the 1st of May, and that the irrigation season did not commence until April 20th of each year.

The substance of what the evidence shows has been set forth in the statement of facts, and we are of the opinion that it would be a clear mistake, in considering the evidence, to hold that Bitler creek is or ever was a natural stream. The trial court found that it was a natural stream. We think the presumption attending such finding is clearly overthrown by the evidence, and we must hold that there was a serious mistake made in the consideration of the evidence by the trial court upon this point.

We have examined the authorities cited by counsel for defendants upon the question at issue, and we are unable to find an authority which under the facts as they appear in the record holds such a stream as Bitler creek is shown to be is a natural stream. It is claimed that the question of whether Bitter creek is a stream or not must be judged with reference to the country or locality in which it is found, and that there are natural streams in arid countries that would not he called such in a country not arid.

But certainly any such distinction should not be carried so far as to make a natural stream out of a dry run or wash. In determining whether a natural stream exists or not, it is permissible to inquire whether the alleged stream flows for such a length of time that its existence will furnish the advantages usually attendant on streams of water. Chicago, etc., R. Co. v. Groves, 20 Okl. 101, 93 Pac. 755, 22 L. R. A. (N. S.) 802; Simmons v. Winters, 21 Or. 35, 27 Pac. 7, 28 Am. St. Rep. 727. The stream in question, when subjected to this test, wholly fails.

It certainly was worthless as a stream from which adjacent lands could be irrigated. It is believed that no definition of a natural stream or water course can he given that will apply to all cases, as each case has its own facts which must influence the judgment of the court. Speaking generally, it seems to be the law that a natural stream must have a channel, boundary, permanent source of supply, and a permanent flow. R. C. L. vol. 27, pp. 1063, 1065, 1066; 40 Cyc. 554, 555, 556; 29 Cyc. 283; Barkley v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519; Pyle v. Richards, 17 Neb. 180; 22 N. W. 370: 27 Am. & Eng.

Encl. of Law, 1: Sanquinetti v. Pock, 136 Cal. 466, 69 Pac. 98, 89 Am. St. Rep. 169; Hutchinson v. Watson Slough Ditch Co., 16 Idaho, 484, 101 Pac. 1095, 133 Am. St. Rep. 125; Rait v. Furrow, 74 Kan. 101, 85 Pac. 934, 6 L. R. A. (N. S.) 157, 10 Ann. Cas. 1044; Thorpe et ux v. City of Spokane, 78 Wash. 488, 139 Pac. 221; C., R. I. & P. v. Morton, 57 Okl. 711, 157 Pac. 917; Town of Jefferson v. Hicks, 23 Okl. 684, 102 Pac. 79, 24 L. R. A. (N. S.) 214; Gibbs v. Williams, 25 Kan. 214, 37 Am. Rep. 241; Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276; Ashley v. Wolcott, 11 Cush. 192; Hoyt v.

City of Hudson, 27 Wis. 664, 9 Am. Rep. 473; Ang. Water Courses (5th Ed.) § 4; Barnes v. Sabron, 10 Nev. 218; 1 Kinney on Irrigation (2d Ed.) pp. 495, 496, 498, 499. We find nothing to the contrary in Simons v. Winters, 21 Or. 35, 27 Pac. 7, 28 Am. St. Rep. 727, Lindblom v. Round Valley Water Co., 178 Cal. 450, 173 Pac. 994, and Oregon-Washington R. & Nav. Co. v. Royer, 255 Fed. 881, 167 C. C. A. 201, because the facts-in those cases are different from those in the case at bar. We therefore decide that Bitter creek is not a natural stream.

The state of Wyoming could not make the creek a natural stream-by issuing a permit to take water therefrom. Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258-269, 50 L. R. A. 747, 87. Am. St. Rep. 918; Ryan v. Tutty, 13 Wyo. 122, 78 Pac. 661; U. S. v. Rams horn Ditch Co. (D. C.) 254 Fed. 842; Id. (C. C. A.) 269 Fed. 80; Wattson v. U. S., 260 Fed. 506, 171 C. C. A. 308; Hagerman Irr. Dist. v. East Grand Plains Drainage Dist., 25 N. M. 649, 187 Pac. 555; Vanderwork v. Hewes, 15 N. M. 439, 110 Pac. 567; Basinger v. Taylor, 30 Idaho, 289, 164 Pac. 522.

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.

Counsel for defendant calls attention to the fact that the act of Congress of August 30, 1890, supra, reserves a right of way for ditches and canals “constructed” by the authority of the United States, while the reservation in the homestead patents contains the additional! words “or to be constructed,” and the claim is made that the reservations in the patents are broader than the statute, and that no authority can be found in the statute for reserving a right of way_ for canals and ditches “to be constructed” by authority of the United States.

Such a construction of the statute would make the reservation therein apply only to ditches that had already been constructed. We do not think that such an absurd result was ever intended by Congress, but that the reservations in the patents were in accordance with the evident intention of Congress, and that, such

interpretation being given by the department of the government having charge of the execution of the statute, great weight must be given to it. We think the statute as well as the patents referred to ditches “to he constructed” in the future. The statute in question lias been construed by the courts in the following cases: Green v. Willhite (C. C.) 160 Fed. 755 (1906); Green v. Willhite, 14 Idaho, 238, 93 Pac. 971 (1908); U. S. v. Van Horn (D. C.) 197 Fed. 611 (Colo. 1912). In those cases the courts have placed the same construction upon the statute as we have indicated. In Green v.

Willhite, 14 Idaho, 238, 93 Pac. 971, a detailed history of the act and the discussions in Congress relative to its purpose and

interpretation are given. It appears clearly from said history, as stated by the Supreme Court of Idaho, that the members of Congress, both those favoring and those opposing the act, believed and understood that it would have the effect, of reserving a perpetual easement and right of way to the government for ditches and canals that might thereafter be constructed by authority of the government over lands that should be entered and patented subsequent to the passage of the act. We have no doubt that the reservation in the homestead patents contained the proper

interpretation of the act of Congress of August 30, 1890. It is further contended by counsel for defendants that there is no justification in the language of the statute enacted by the Legislature of Wyoming for the purpose of reserving a right of way for ditches, tunnels, telephone, and transmission lines constructed by and under the authority of the United States for extending said right of easement to lands not owned by the state.

We do not think it is open to the defendants, who purchased their lands from the state of Wyoing and received and accepted the deed of conveyance containing the reservation heretofore mentioned, to now complain as against the plaintiff that the reservation.is void. The reservation and the deed of conveyance was made pursuant to the last proviso of

section 4954, C. S. Wyo. 1920, heretofore quoted, and became operative at the time the deed was executed and delivered. The defendants took their title subject to this burden and with full knowledge thereof. No injustice results, for the reason that the lands purchased by defendants were admittedly worthless without irrigation, and they were not purchased until the plaintiff had proceeded far enough with its Shoshone project so as to show that these lands would be irrigated thereunder.

Counsel for defendants complains of the great injustice done the defendants by the manner in which Bitter creek was .deepened across defendants’ lands. We have no intention of deciding that the plaintiff could go on the lands of defendants and in a reckless and careless way construct a ditch that would unnecessarily damage the lands of defendants, and the decision in this case will be without prejudice to the right of the defendants, or any of them, to recover from the plaintiff any damages resulting "from the want of ordinary care in constructing the ditch or the deepening of Bitter creek.

We think the plaintiff was fully authorized, by the statutes that have been mentioned and the reservations in the patents and deeds of'conveyance, to construct a ditch across defendants’ lands using ordinary care. It is well settled that the plaintiff may construct drainage works as a part of its irrigation system. Bissett v. Pioneer Irr. Dist., 21 Idaho, 98, 120 Pac. 461; Pioneer Irr. Dist. v. Stone, 23 Idaho, 344, 130 Pac. 382; Nampa & Meridian Dist. v. Petrie, 28 Idaho, 227, 153 Pac. 425; G. G. Burt et al. Drainage Dist. v. Farmer’s Co-operative Co., 30 Idaho, 752, 168 Pac. 1078.

The necessity for drainage and the methods of conducting the work are, in our opinion, in the sound discretion of the Secretary of the Interior, and such discretion cannot be reviewed by the courts. Ness v. Fisher, 223 U. S. 691, 32 Sup. Ct. 356, 56 L. Ed. 610; Knight v. U. S. Land Association, 142 U. S. 161, 12 Sup. Ct. 258, 35 L. Ed. 974; Noble v. Union River Logging Co., 147 U. S. 165, 13 Sup. Ct. 271, 37 L. Ed. 123 (1893); U. S. v. Minidoka & W. R. Co., 190 Fed. 491, 111 C. C. A. 323 (1911); Stalker v. O. S. L. Ry. Co., 225 U. S. 142, 32 Sup. Ct. 636, 56 L. Ed. 1027 (1912); U. S, v. O’Neill (D.

C.) 198 Fed. 680; U. S. v. Burley (C. C.) 172 Fed. 617; State ex rel. Megler v. Forrest, Commissioner of Public Lands, 13 Wash. 268, 43 Pac. 51 (1895); U. S. v. Doherty (D. C.) 27 Fed. 730; U. S. v. Schurz, 102 U. S. 375, 26 L. Ed. 167; Cosmos Exploration Co. v. Gray Eagle Co., 190 U. S. 301, 23 Sup. Ct. 692, 47 L. Ed. 1064; Riverside Oil Co. v. Hitchcock, 190 U. S. 317; 23 Sup. Ct. 698, 47 L. Ed. 1074; U. S. v. Speed, 8 Wall. 77, 83, 19 L. Ed. 449; Earnshaw v. U. S., 146 U. S. 60, 13 Sup. Ct. 14, 36 L. Ed. 887; Bates v. Payne, 194 U. S. 107, 24 Sup. Ct. 595, 48 L. Ed. 894.

The right of the plaintiff to save and continue to use the drainage, seepage, and waste waters of its project is established by the following cases: Ramshorn Ditch Co. v. U. S. (C. C. A.) 269 Fed. 80, 83 (8th Cir. 1920); Griffiths v. Cole (D. C.) 264 Fed. 369, 372 (Idaho, 1919); McKelvey v. North Sterling Irr. Dist., 66 Colo. 11, 179 Pac. 872, 874 (1919); Hagerman Irr. Co. v. East Grand Plains Drainage Dist., 25 N. M. 649, 187 Pac. 555, 557, 558 (1920); Lambeye v. Garcia, 18 Ariz. 178, 157 Pac. 977, 979, 980 (1916); United States v. Oliver O. Haga et ux. (D. C.) 276 Fed. 41. (August 10, 1921).

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 continue to use the drainage, seepage, and waste waters of its project as long as such water could be identified and had not been abandoned. So far as abandonment is concerned, it was neither pleaded nor proven by the defendants.

There may have been some of the plaintiff’s water which during the construction of the Shoshone project may have flowed into the Shoshone river, but the acts and declarations of the plaintiff show that as soon as it could reasonably do so it commenced to construct ditches and diversion works to save and divert drainage, seepage, and waste water arising from its project, for the purpose of applying it to the beneficial use of irrigating lands in the Garland division. The evidence shows that at all times plaintiff had in mind the saving of its waste water.

Even if it liad been shewn that the plaintiff had abandoned some of this waste water, it would not preclude it from subsequently attempting to save it for beneficial use, where the rights of third parties had not intervened, and the defendants are no such parties, as they have no lawful right to take water from Bitter creek, except under the terms of the Reclamation Act. In U.

S. v„ Haga, supra, Dietrich, District Judge, used the following language in regard to the question now under consideration: “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.” We conclude that the facts as stated and the law applicable thereto require a reversal of the decree below, and that the case be remanded to that court, with directions to enter a decree in favor of the plaintiff as prayed; and it is so ordered.