Evans v. Swendsen
| Decision Date | 04 August 1921 |
| Citation | 200 P. 136,34 Idaho 290 |
| Parties | E. RALPH EVANS, Respondent, v. WARREN G. SWENDSEN, Commissioner of Reclamation of the State of Idaho, Appellant |
| Court | Idaho Supreme Court |
WATER AND WATERCOURSES-CAREY ACT-NOTICE OF OPENING OF LAND FOR SETTLEMENT-CANCELATION OF NOTICE.
Where pursuant to C. S., sec. 3008, notice has been duly published that lands segregated under the Carey Act, or a portion thereof, are open for settlement, the state board of land commissioners or the commissioner of reclamation have no authority thereafter to cancel such notice or withdraw the lands from settlement because of information that there is not an ample supply of water for the irrigation or reclamation of said lands.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.
Judgment directing issuance of writ of mandate compelling defendant to accept filing on Carey Act segregation. Affirmed.
Judgment affirmed, with costs to respondent.
Roy L Black, Attorney General, and Dean Driscoll, Assistant, for Appellant.
There is a plain distinction between the case of Furbee v Alexander, 31 Idaho 738, 176 P. 97, and case such as this where the board has made an order revoking the opening notice, and that a different rule would be applied by the court is apparent not only from the statutes but from the decision in the Furbee case itself.
In that opinion the court speaks of the very wide discretion vested in the land board in all matters looking to the segregation, contracting, character of the works, the amount of water to be supplied, the price and many other provisions.
Sec. 3008, C. S., expressly requires notice when the lands are thrown open, but that requirement is not expressly made applicable to recall the notice, nor is there any other statutory requirement for it. In the absence of such requirement, we see no legal necessity for its being given.
Oppenheim & Lampert and Walters & Hodgin, for Respondent.
Neither the state board of land commissioners nor the department of reclamation had any power or authority to withdraw the land in question from being open to entry. (State v. Des Chutes Land Co., 64 Ore. 167, 129 P. 764; Furbee v. Alexander, 31 Idaho 738, 176 P. 97.)
RICE, C. J. Budge, Dunn and Lee, JJ., concur. McCarthy, J., did not sit at the hearing or take any part in the opinion.
--Respondent, a qualified entryman, applied to the district court for a writ of mandate to require appellant to accept his filing upon a certain tract of land within a Carey Act segregation. It is admitted that on October 12, 1907, the state board of land commissioners gave notice pursuant to law that certain lands, including the tract of land in controversy, were open for entry and settlement under the acts of Congress and the legislature of the state of Idaho; that on December 4, 1918, respondent entered into a contract with the construction company for the purchase of a water right to be used upon this tract; that on December 12, 1918, he made his application to enter the land; that the state board of land commissioners on March 29, 1919, refused to accept said entry; that on April 12, 1919, he renewed his application for entry of the land with the Department of Reclamation and the application was denied. The land in question had been patented by the United States to the state of Idaho prior to the application for entry.
Appellant in his answer alleged that at the time patent issued to the state of Idaho, the state, its officials and agents, believed that an ample supply of water had been actually furnished in a substantial ditch or canals to reclaim the land and so represented to the United States; that patent was issued in reliance upon such representations; that appellant is now informed and believes that there is not nor has ever been an ample supply of water for the irrigation or reclamation of said land; that therefore the state board of land commissioners, on December 9, 1918, prior to the filing of respondent's application, but subsequent to the time he entered into his contract with the construction company, by resolution canceled, annulled and withdrew all resolutions throwing open to entry the lands embraced within the Carey Act segregation involved, and withdrew from entry all the unentered land situated therein. It is further alleged that publication was duly made of such resolution. De...
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