Columbia Irrigation District v. United States, 16047.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: DENMAN, Senior Circuit , FEE and HAMLIN, Circuit
• Citation: Columbia Irrigation District v. United States, 268 F.2d 128 (9th Cir. 1959)
• Decision Date: 22 April 1959
• Docket Number: No. 16047.,16047.
• Parties: COLUMBIA IRRIGATION DISTRICT, a corporation, Appellant, v. UNITED STATES of America, Appellee. STATE OF WASHINGTON, Appellant, v. UNITED STATES of America, Appellee.

268 F.2d 128 (1959)

COLUMBIA IRRIGATION DISTRICT, a corporation, Appellant, v. UNITED STATES of America, Appellee.

STATE OF WASHINGTON, Appellant, v. UNITED STATES of America, Appellee.

No. 16047.

United States Court of Appeals Ninth Circuit.

April 22, 1959.

Leavy & Taber, James Leavy, Pasco, Wash., John J. O'Connell, Atty. Gen., E. P. Donnelly, Asst. Atty. Gen., State of Washington, for appellants.

Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Harold S. Harrison, Attorneys, Department of Justice, Washington, D. C., Dale M. Green, U. S. Atty., Spokane, Wash., Ronald R. Hull, Asst. U. S. Atty., Yakima, Wash., for appellee.

Before DENMAN, Senior Circuit Judge, FEE and HAMLIN, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

This proceeding was instituted by the United States in December, 1952, to acquire all right, title and interest of Columbia Irrigation District in 3,479.73 acres of land for use in connection with the McNary Lock and Dam Project. Possession was granted effective March 31, 1953. An amended complaint was filed in December, 1954, to acquire the fee simple title to Parcel I, consisting of 13 tracts of land and containing 132.42 acres, all right, title and interest of Columbia Irrigation District, which is the parcel here in controversy, consisting of 11 segments containing 3,292.71 acres, which is Parcel II, and perpetual easements for flowage purposes and for a drainage ditch over 2 tracts containing a total of 0.58 of an acre, designated as Parcel III. The three parcels were physically contiguous.

The State of Washington had not originally been joined as a party. But in December, 1955, the State was added as a party so that any claim it had as a holder of bonds which were a lien upon the real property of the District could be adjudicated.

In June, 1956, the government filed a petition for judgment as to Parcel II, asking, among other things, that a decree be entered determining that neither the Columbia Irrigation District nor the State of Washington held any compensable interest in the lands described in Parcel II. The court treated this petition as a motion for summary judgment. This petition was denied by formal order on October 9, 1958, apparently upon the ground that factual issues were presented. On December 11, 1956, the court suggested that the issue as to Parcel II was whether the District had a compensable interest therein at all and that this should be severed from the trial on Parcels I and III. To the severance Columbia objected. The court also intimated that he was convinced at the time that neither Columbia nor the State had any compensable interest. Accordingly, a hearing was had on Parcel II separately, but the whole transaction was extremely confused. No proof, as such, was introduced. There was a stipulation that the fee simple title to all the lands in Parcel II had been acquired by the government from the individual owners either by purchase or by condemnation. There was no mention by the court of easements or rights of way. An offer of proof was called for by Columbia. The main insistence in the argument that followed was upon the fact that the agents of the government had agreed to a contract to pay Columbia for its rights in these lands, but had finally refused to execute the formal document. Great emphasis was laid upon the fact that these lands were included in the boundaries of the District and that the District would lose a great portion of its revenue if these were withdrawn. The court correctly gave no weight to these arguments.

However, in this statement counsel for Columbia asked for a consideration of severance damage on account of the cutting off of Parcel II from Parcels I and III, which were the main works of Columbia. He called attention to the fact that "the land taken from Columbia Irrigation District, including rights of way and improvements, changes the Columbia Irrigation District from an economically feasible operating Irrigation District to an uneconomic Irrigation District."

He also said:

"The lands acquired by the Government for the McNary Lock and Dam Project had water rights appurtenant thereto and each tract in such land received benefits from being included within the District and the District was ready at all times to supply service by way of irrigation water to said lands and still is."

"The lands embraced in the District are virtually useless without the application of irrigation water as furnished by the facilities of the Columbia Irrigation District due to the arid nature of the land."

"Approximately 132 of the total acres taken, as above-mentioned, are acres of land owned in fee by the Columbia Irrigation District and several thousand dollars worth of irrigation facilities were taken, most of which are included in the lands described in Parcel I."

Specifically, he described certain main canal and laterals. These easements were thus claimed as property rights mainly upon Parcels I and III, but descriptions of the course of the main canal over lands included in the 11 segments of Parcel II, which appear in Exhibit "A" to the complaint, are extremely numerous. The course of the easements claimed for the laterals seems to fall largely in Parcel II.

It thus appears that Columbia laid claim to certain easements overlying the fee simple titles of the lands in Parcel II. If the easements were in existence, the lands held by Columbia in Parcel I would have constituted the dominant tenement, and the lands held by private owners in Parcel II would have been servient tenements. The government did not divest Columbia of such real property, if there were easements, by condemnation or purchase of the private interests.

If there were a property interest, the government would have been constrained by the provision of the Constitution to pay just compensation therefor. Whether these easements were in existence and...