Carns v. Idaho-Iowa Lateral & Reservoir Co.

• Citation: 34 Idaho 330,202 P. 1071
• Parties: EDNA M. CARNS, Appellant, v. IDAHO-IOWA LATERAL AND RESERVOIR COMPANY, a Corporation, Respondent
• Decision Date: 03 September 1921
• Court: United States State Supreme Court of Idaho

202 P. 1071

34 Idaho 330

EDNA M. CARNS, Appellant, v. IDAHO-IOWA LATERAL AND RESERVOIR COMPANY, a Corporation, Respondent

Supreme Court of Idaho

September 3, 1921

PUBLIC LANDS-RIGHT OF WAY-FORFEITURE.

1. A grant of right of way under the act of Congress of March 3 1891, is in praesenti, and is subject to forfeiture for failure to complete the works within five years after the location of the same.

2. The provision in the statute for a forfeiture of a right of way granted under the act of March 3, 1891, either for failure to complete the works within five years after the location of the same, or for failure to make use of the right of way for the purposes for which granted, is one for breach of condition subsequent, and failure to comply with such conditions does not operate ipso facto to divest the title of the grantee.

3. The title to a right of way granted under the act of March 3 1891, does not become void upon breach of condition subsequent, but must be terminated by an action brought for the purpose of having a forfeiture declared or by a re-entry by one invested with the right of re-entry.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Action to quiet title. Judgment for defendant. Affirmed.

Judgment affirmed, with costs to respondent.

E. G. Davis, for Appellant.

Where an easement in certain lands has been granted as a right of way for a reservoir for purposes of irrigation under the act of March 3, 1891, and the fee in said lands is later granted subject to the said right of way by government patent to homestead settlers thereon, the owner of the servient fee, in order to protect his right of reversion, may bring a suit in a state court to declare a forfeiture of such right of way, and the state court has jurisdiction, upon a proper showing, to decree such forfeiture. (Crandall v. Goss, 30 Idaho 661, 167 P. 1025; Whitmore v. Pleasant Valley Coal Co., 27 Utah 284, 75 P. 748; Baldridge v. Leon Lake, Ditch & Reservoir Co., 20 Colo. App. 518, 80 P. 477; Denver & R. G. R. R. Co. v. Mills, 222 F. 481, 138 C. C. A. 77; Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho 695, 704, 151 P. 998; Jones on Easements, secs. 844, 855; Neitzel v. Spokane International R. R. Co., 65 Wash. 100, 117 P. 864, 36 L. R. A., N. S., 522; Reichenbach v. Washington Short Line R. R. Co., 10 Wash. 357, 38 P. 1126.)

In addition to a forfeiture resulting from failure to comply with the act of March 3, 1891 (26 Stat. 1095; U.S. Comp. Stats., sec. 4934; 8 F. Stats. Ann., p. 803), there has been a forfeiture under sec. 5582, C. S. of Idaho, of all right to the use of water attempted to be appropriated for lands under the reservoir in question, and this forfeiture of a water right carries with it a forfeiture of all rights of way for ditches, reservoirs, etc., which forfeiture the owner of the fee in the lands to which such right of way attaches may enforce in a state court. (Smith v. Hawkins, 110 Cal. 122, 42 P. 453; Kinney on Irrigation & Water Rights, 2d ed., sec. 1118.)

Richards & Haga and C. C. Cavanah, for Respondent.

The various acts of Congress granting rights of way to railroads, canal companies and reservoir companies vest a qualified limited or conditional fee in the right of way claimant, subject to the express condition that the railroad, canal or reservoir be constructed within the time limited in the act, and to an implied condition that the land granted be used for the purposes of the grant. (Rio Grande Western R. R. Co. v. Stringham, 239 U.S. 44, 36 S.Ct. 5, 60 L.Ed. 136; Oregon Short Line R. R. Co. v. Stalker, 14 Idaho 362, 94 P. 56; Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 23 S.Ct. 671, 47 L.Ed. 1044; Stalker v. Oregon Short Line R. R. Co., 225 U.S. 142, 32 S.Ct. 636, 56 L.Ed. 1027; Hamilton v. Spokane etc. Ry. Co., 3 Idaho 164, 28 P. 408; Allen v. Denver etc. Co., 38 L. D. 207; Melder v. White, 28 L. D. 412; United States v. Northern Pacific Ry. Co., 177 U.S. 435, 20 S.Ct. 706, 44 L.Ed. 836; St. Joseph etc. Co. v. Baldwin, 103 U.S. 426, 26 L.Ed. 578; Union Pacific R. R. Co. v. Snow, 231 U.S. 204, 34 S.Ct. 104, 58 L.Ed. 184; Regulations of Interior Dept., 12 L. D. 429, 31 L. D. 503, 36 L. D. 566; New Mexico v. United States Trust Co., 172 U.S. 171, 19 S.Ct. 128, 43 L.Ed. 407; United States v. Michigan, 190 U.S. 379, 23 S.Ct. 742, 47 L.Ed. 1103; Western Union Tel. Co. v. Pennsylvania R. R. Co., 195 U.S. 440, 1 Ann. Cas. 517, 25 S.Ct. 133, 49 L.Ed. 312.)

Upon a breach of the express or implied condition of the grant the right of way estate does not terminate ipso facto, but there must be a declaration of forfeiture either by act of Congress or in judicial proceedings instituted by the United States under congressional authority in order to terminate the grant. (United States v. Whitney, 176 F. 593; United States v. Washington Improvement Co., 189 F. 674; Union Pacific R. R. Co. v. Snow, 231 U.S. 204, 34 S.Ct. 104, 58 L.Ed. 184; Union Land & Stock Co. v. United States, 257 F. 635, 168 C. C. A. 585; Schulenberg v. Harriman, 21 Wall. 44, 22 L.Ed. 551; United States v. Northern Pacific Ry. Co., 177 U.S. 435, 20 S.Ct. 706, 44 L.Ed. 836; Bybee v. Oregon & California R. R. Co., 139 U.S. 63, 11 S.Ct. 641, 35 L.Ed. 305.)

The right of re-entry by the government or its possibility of reverter for condition broken is not conveyed by patents issued subject to the right of way and cannot be asserted by the patentees of the legal subdivisions including the right of way. (O. S. L. R. R. Co. v. Stalker, supra; Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 23 S.Ct. 671, 47 L.Ed. 1044; Union Pacific Ry. Co. v. Snow, 231 U.S. 204, 34 S.Ct. 104, 58 L. ed 184; Northern P. Ry. Co. v. Smith, 171 U.S. 260, 18 S.Ct. 794, 43 L.Ed. 157; St. Joseph Co. v. Baldwin, 103 U.S. 426, 26 L.Ed. 478; 1 Tiffany on Real Property, 3d ed., pp. 311, 312, 334, 472-474; Jones on Easements, sec. 844.)

RICE, C. J., LEE, J. Dunn, Lee, JJ., and Rice, C. J., concurring. Budge, J., McCarthy, J., did not sit at the hearing or take any part in the opinion. Budge, J., expresses no opinion.

OPINION

RICE, C. J.

In her complaint appellant alleged that she was the owner of a certain tract of land situated in Ada county; that the respondent had partially constructed a dam and reservoir on her land and impounded water therein; that the water so impounded overflows her land; that respondent claims an easement in her land for reservoir purposes, but the same is unlawful and wholly without right. Respondent in its answer admitted that it had constructed a reservoir and overflowed the land of appellant with the water impounded therein. By way of defense respondent alleged that while the land in controversy was unoccupied government land it had filed in the United States land office at Boise, Idaho, a map of its proposed reservoir, together with all other data required by the statute and regulations of the Department of the Interior, which map was approved by the Secretary of the Interior; that it constructed its reservoir and thereafter filed in the land office a map of amended definite location showing the reservoir as actually constructed, which included a smaller area than that embraced in the original application and also presented proof of such construction as required by the regulations of the department; that thereafter the Secretary of the Interior approved the map of amended definite location and accepted the proof of the completion of the reservoir, and that appellant made entry of the land and received patent therefor subject to the right of way of respondent.

The appeal is from the judgment for defendant.

Appellant contends that the right of way for reservoir purposes, under the act of March 3, 1891, 26 Stats. at L. 1101, 1102, U.S. Comp. Stats., secs. 4934-4936, 8 F. Stats. Ann., pp. 803-805, must be for purposes of irrigation; that the evidence showed that respondent had not used the waters impounded in the reservoir for a period extending over many years and that it had therefore forfeited its right to maintain the reservoir. On the other hand, respondent contends that the right to have a forfeiture declared can be exercised only by the United States government either by means of a judicial proceeding brought for that purpose or by some appropriate act of Congress. We do not think that either contention can be considered in view of the condition of the record. The grant of right of way for reservoir, under the congressional act before mentioned, is one in praesenti, subject to forfeiture for failure to complete the works within five years after the location of the same. (United States v. Whitney, 176 F. 593.) In this case it is said: "This requirement being in the nature of a condition subsequent, the rule undoubtedly is that failure to comply therewith does not operate ipso facto to divest the grantee of the title and reinvest the grantor therewith, but that to be effectual, the default must be followed with a declaration of forfeiture by some competent authority, and, the grant here being of a public nature, such declaration can be made only by an act of Congress, or in an appropriate judicial proceeding." (See, also, Union Land & Stock Co. v. United States, 257 F. 635, 168 C. C. A. 585; Schulenberg v. Harriman, 88 U.S. 44, 21 Wall. 44, 22 L.Ed. 551.) The same principle applies where it is claimed that the right of way has been forfeited for failure to use it for the purposes for which it was granted.

Waiving the question as to the capacity of appellant to bring an action in a state court to have a forfeiture declared, we think that it is necessary that a complaint seeking such relief set out the grounds upon which a forfeiture is sought. Forfeitures are not favored...