Baumann v. Smrha

• Decision Date: 30 April 1956
• Docket Number: Civ. A. No. T-1228.
• Citation: 145 F. Supp. 617
• Court: U.S. District Court — District of Kansas
• Parties: J. H. BAUMANN and Marguerite Marie Jacobson, Plaintiffs, v. Robert V. SMRHA, as Chief Engineer of the Division of Water Resources of the Kansas State Board of Agriculture, Defendant, and City of Wichita, Kansas, Intervener.

145 F. Supp. 617

J. H. BAUMANN and Marguerite Marie Jacobson, Plaintiffs, v. Robert V. SMRHA, as Chief Engineer of the Division of Water Resources of the Kansas State Board of Agriculture, Defendant, and City of Wichita, Kansas, Intervener.

Civ. A. No. T-1228.

United States District Court D. Kansas.

April 30, 1956.

Kenneth G. Speir, Vernon A. Stroberg, Herbert H. Sizemore, and Richard F. Hrdlicka, Newton, Kan., for plaintiffs.

Harold R. Fatzer, Atty. Gen., for the State of Kansas.

Paul E. Wilson, Asst. Atty. Gen., and Warden L. Noe, Sp. Asst. Atty. Gen., for defendant.

Fred W. Aley, Robert B. Morton, and Paul J. Donaldson, Wichita, Kan., for intervenor, City of Wichita, Kan.

Daniel R. Hopkins, Garden City, for Finney County Water Users Ass'n, South Side Irr. Co., Kearny County Farmers Irr. Ass'n, Garden City Ditch Co., United States Irrigating Co., and Earl C. Brookover, amici curiæ.

Arno Windscheffel, Smith Center, Kan., for Kirwin Irr. Dist., amicus curiæ.

N. J. Ward, Belleville, Kan., for Kansas Bostwick Irr. Dist., amicus curiæ.

Before HUXMAN and PHILLIPS, Circuit Judges, and MELLOTT, District Judge.

PHILLIPS, Circuit Judge.

This action was instituted on August 16, 1955, in the above court, by J. H. Baumann and Marguerite Marie Jacobson, plaintiffs, under the provisions of 28 U.S.C. §§ 1331, 2201, 2281 and 2284, against Robert V. Smrha, defendant, Chief Engineer of the Division of Water Resources of the Kansas State Board of Agriculture. This action arises under the Fourteenth Amendment to the Constitution of the United States.

The action was brought for the purpose of obtaining a declaratory judgment that the Kansas Water Appropriation Act of 1945, G.S.1949, Ch. 82a, Art. 7, hereinafter referred to as the Act, violates the Fourteenth Amendment to the Constitution of the United States, and is, therefore, null and void; for an injunction restraining the defendant from enforcing, operating under, or executing said Act; and requiring defendant to revoke and nullify any and all permits, vested right orders, or other actions and decisions heretofore taken or entered by him under or pursuant to said Act. On September 9, 1955, an order was entered in the case, constituting a three-judge court. On September 10, 1955, the defendant filed a motion to quash the summons and dismiss the action on the grounds: (1) the court does not have jurisdiction of the defendant: (2) that the court does not have jurisdiction of the subject matter of the action; and (3) that the complaint does not state a cause of action. On October 13, 1955, the City of Wichita, Kansas, hereinafter referred to as the City, with the leave of court, intervened in the action and filed an answer. Pursuant to an order entered on September 26, 1955, a hearing was had before the three-judge court on October 21, 1955. At this hearing it was agreed that the court would not attempt to adjudicate any liability of the City to the plaintiffs. Certain irrigation districts and Earl C. Brookover were granted leave to file briefs as "friends of the Court" in support of the defendant's position that the statute is valid. The Committee of Kansas Farm Organizations was also granted leave to file a brief as a "friend of the Court" in support of plaintiffs' contention. Certain facts were stipulated and certain exhibits were introduced in evidence. The parties then agreed in open court that there no longer remained any controverted issue of fact and both plaintiffs and defendant orally moved for summary judgment.

The motions for summary judgment were orally argued. Written briefs have been filed and the motions now stand submitted.

The material facts are as follows:

The plaintiff, J. H. Baumann, is the life tenant, and the plaintiff, Marguerite Marie Jacobson, is the remainder owner of the fee title to certain lands situated in Harvey County, Kansas, on the south boundary line of said county, three miles west and two miles north of the Town of Bentley; to wit, the southwest quarter of Section 32, Township 24 South, Range 2 West of the Sixth Principal Meridian. The title to such lands, now owned by plaintiffs, passed from the United States into private ownership during the year 1880 and the plaintiff, Baumann, acquired it in 1930.

Such lands are located in what is known as the "Equus Beds," a geological formation containing water of a quantity suitable for domestic, municipal, irrigation, and other purposes. The Equus Beds is a ground water reservoir composed of extremely permeable gravel and sand, occupying the channel of an ancestral Smoky Hill River, which flowed into an ancestral Arkansas River. Such Beds cover an area extending approximately 55 miles north and south between Wichita and Lindsborg and approximately 25 miles east and west and located principally in the Counties of Sedgwick, Harvey, and McPherson, in the State of Kansas. The ground water within the reservoir moves generally toward the Little Arkansas River, except in the northern part, where there is a movement toward the Smoky Hill River. There has been and now is a "draw-down" of the water table under plaintiffs' lands. Such Beds provide natural sub-irrigation for plaintiffs' lands and plaintiffs have been and are using Equus Beds water for domestic purposes.

It has been estimated on the basis of test drilling that the part of this ground water reservoir between the Towns of McPherson and Valley Center contained millions of acre feet of water in storage under natural conditions. This ground water is recharged chiefly by direct precipitation. Detailed studies made from 1938 to 1944 showed that most of the natural discharge from the ground water reservoir occurred by evapotranspiration in areas where the depth of water was less than 20 feet.

In 1940, the City acquired by purchase for municipal water supply 25 five-acre well sites in Harvey County, located three to ten miles east and northeast of plaintiffs' lands and thereafter the City purchased other well sites. Thereafter, the City drilled and equipped water wells thereon and commenced pumping water therefrom for use by the inhabitants of the City and its environs. The water levels of the Equus Beds have declined since the City drilled wells in 1940 and the water table might have declined as much as four feet without pumping, because of drought, but the rest of the decline must be attributed to pumping, chiefly by the City.

At present there are more than 200 water wells in addition to the City's wells that are located in the general area of plaintiffs' lands, at least 14 being located nearer to plaintiffs' lands than any of the City's wells. Since 1945, the operations of the City and others, pursuant to certain permits and orders issued by the defendant, have withdrawn and are withdrawing water from the Equus Beds.

The defendant is the duly appointed, qualified and acting Chief Engineer of the Division of Water Resources of the Kansas State Board of Agriculture, and is the official charged with certain duties and authorities in connection with the administration of the Act.

By reason of the operations of the City, pursuant to said permits and orders of defendant, plaintiffs' lands have been affected to a considerable extent and will continue to be more seriously affected if said City is permitted to continue to withdraw water from under plaintiffs' lands. From January, 1952, to October 1, 1954, the water table under plaintiffs' lands declined approximately four feet. From October 1, 1954, to July 1, 1955, the water table level under plaintiffs' lands and other lands in the same general area remained almost constant. The water table under all lands in the same general area similarly declined.

The Kansas legislature has taken cognizance of apparent damages to landowners by reason of granting permits for appropriating water for beneficial use and of questions of the constitutionality of the Act, arising because of inadequate provisions as to notice to and for compensation of landowners and persons owning vested water rights. The Kansas Legislative Council reported that procedural aspects of the Act needed correction to insure notice and hearing.

The people who depend upon the Equus Beds for water have the immediate problems which accompany increasing use of any reservoir — water holes have gone dry, shallow wells have been deepened, many wells now obtain water of poorer quality, and some crops have undoubtedly been reduced in area where the water table was once near enough to the surface to be reached by the plants.

At the end of 1951, the water table was higher throughout the well-field area than at the end of 1954, and at the end of that wet year, it was significantly lower than in 1940, throughout an area of 45 square miles, and the decline exceeded 10 feet in an area of 11 square miles, and in certain locations 20 feet. This area of depression had been expanding and deepening ever since pumping began in 1940, partly because of the progressive increase in pumpage from 1940 to 1951.

Plaintiffs' land is located in the City's proposed and pending well-field application for 25,000 additional acre feet of water per year.

It is alleged in the complaint that the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs. On motion for summary judgment, that allegation stands admitted,¹ and it does not affirmatively appear from the complaint that the value of the right which the plaintiffs seek to protect does not exceed $3,000, exclusive of interest and costs.

The Act, in part, reads as follows:

"82a-701. Definitions. When used in this act the following words shall have the following respective meanings:

"(a) `Person' shall mean and include a natural person, a partnership, an organization, a corporation, a municipality and any agency of the federal government.

"(b) `Chief engineer' means the chief engineer of the division of water resources of the Kansas state board of agriculture.

"(c)

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