Green v. Wilhite

• Decision Date: 07 February 1908
• Citation: 14 Idaho 238,93 P. 971
• Parties: KATE GREEN, Respondent, v. CHARLES WILHITE and ED. CONWAY, Appellants
• Court: Idaho Supreme Court

93 P. 971

14 Idaho 238

KATE GREEN, Respondent, v. CHARLES WILHITE and ED. CONWAY, Appellants

Supreme Court of Idaho

February 7, 1908

RECLAMATION WORKS-GOVERNMENT DITCHES AND CANALS-GOVERNMENT RIGHT OF WAY FOR DITCHES AND CANALS.

1. Under the provisions of the sundry civil appropriation act of Congress of August 30, 1890 (26 Stats. at Large, 391), which provides: "That in all patents for lands hereafter taken up under any of the land laws of the United States, or on entries or claims validated by this act, west of the one-hundredth meridian, it shall be expressed that there is reserved from the land in said patent described a right of way thereon for ditches or canals constructed by the authority of the United States," the word "constructed" as there used has a general reference and application to ditches or canals constructed by the authority of the United States without reference to the time of such construction.

2. Under the provisions of the act above quoted, it was the evident intention of Congress to reserve perpetually to the government an easement and right of way through and over any and all lands west of the one-hundredth meridian that the government might grant to settlers and purchasers subsequent to the passage of the act, and to thereby reserve the easement and right of way for the construction, maintenance and operation of any ditches and canals the government may construct at any time in the future for the irrigation and reclamation of arid lands.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District for the County of Canyon. Hon. Frank J. Smith, Judge.

Action by the plaintiff, as the owner of certain lands described in her complaint, to obtain an injunction restraining the defendants, as contractors under the United States, from trespassing upon plaintiff's land and doing excavation and constructing a canal across the same. The plaintiff alleged that she was the owner of a certain tract of land which she acquired from the United States on or about the 7th day of December, 1893, and subsequent to the act of Congress approved August 30, 1890; that the defendants are contractors under the government of the United States for the construction of a portion of an irrigation canal known as the "Boise-Payette Government Irrigation Project," and that as such contractors they had, without the permission or consent of the plaintiff, entered upon her lands and done certain work and excavation and threatened to continue the same to her injury and damage, etc. It was also alleged in the complaint that the defendants claimed the right to enter upon the plaintiff's lands by authority of the act of Congress approved August 30, 1890 (26 U.S. Stats. at Large 391), wherein and whereby it was and is provided, "That all patents for lands hereafter taken up under any of the land laws of the United States, or on entries or claims validated by this act, west of the one-hundredth meridian, it shall be expressed that there is reserved from the land in said patent described a right of way thereon for ditches or canals constructed by the authority of the United States." It was further alleged that the plaintiff's lands were entered and patented under the desert land laws of the United States, and that the entry and patent were subsequent to the approval of the act of August 30, 1890. Defendants demurred to the complaint and the demurrer was overruled. They declined to answer, and judgment was accordingly entered against them. This appeal is from the judgment. Reversed.

Reversed and remanded, with direction. Costs awarded in favor of the appellant.

N. M Ruick, for Appellants.

"In construing the terms of a statute, especially when the legislation is experimental, courts must take notice of the history of the legislation, and, out of different possible constructions, must select the one which best comports with the genius of our institutions." (Tex. & P. Ry. v Interstate Commerce Com., 162 U.S. 197, 16 S.Ct. 666, 40 L. R. A. 940.)

"The general rule is perfectly well settled that, where a statute is of doubtful meaning and susceptible upon its face of two constructions, the court may look into prior and contemporaneous acts, the reasons which induced the act in question, the mischiefs intended to be remedied, the extraneous circumstances, and the purpose intended to be accomplished by it, to determine its proper construction." (Hamilton v. Rathbone, 175 U.S. 414, 419, 20 S.Ct. 155, 44 L.Ed. 219.)

"In the interpretation of an ambiguous statute, courts should examine it in the light of the history of its enactment as disclosed by the journals of the legislature, the contemporary history of the conditions and situation of the people, the economic and sociologic policy of the state, its constitution and laws, and all other matters of common knowledge within the limits of their jurisdiction." ( State v. Kelley, 71 Kan. 811, 81 P. 450, 70 L. R. A. 450, and numerous other cases there cited.)

In a decision by the Secretary of the Interior under date of June 4, 1903 (32 L. D. 147), the act of 1890 was considered, and it was held that the canal reservation would apply for the benefit of canals constructed by the reclamation service as to all entries under the public or general land laws made since October 2, 1888.

In the case of Green, administrator, against these same defendants, begun at the same time and removed from the district court of the seventh judicial district for Canyon county to the United States circuit court, the identical question involved in the case at bar was raised by demurrer to the complaint. Judge Beatty, on October 31, 1906, rendered a decision (unpublished) sustaining the demurrer.

It is plain that the portion of the act of August 30, 1890, in question could have had no retroactive effect, not only because Congress had no power to claim such an easement for lands disposed of prior to that time, but also because no such canal had ever been constructed by the United States upon public lands, and because any canals which might have been constructed by the United States before that date would not require such legislation.

Edgar Wilson, for Respondent.

The reclamation act was passed June 17, 1902, twelve years after the right of way act of 1890. The debates cited by counsel for appellants not only fail to sustain the government's interpretation of this right of way act, but they show that Congress at that time had no intention of passing the reclamation act of 1902, and did not contemplate any such legislation. It is, therefore, fair to assume that the right of way act of 1890 cannot be interpreted as applicable to the supposed necessities of the government under the reclamation act passed twelve years thereafter.

The United States commenced the construction of irrigating ditches and canals long before the passage of the proviso of 1890, the interpretation of which is involved in this case.

Counsel for appellants, in citing the only authorities referred to in his brief, evidently conceives this to be a question of statutory construction. In our opinion it is not a question of statutory construction at all, but one involving the interpretation of the terms of a grant as expressed in the deed or patent. The statute simply declares that the patent shall contain a clause in effect that it is issued by the government subject to the right of way for canals constructed under the authority of the United States.

Treating the proviso involved in the act of 1890 as a reservation, creating a new easement of an indefinite and uncertain right of way out of the premises granted, almost of necessity, defeats the purposes of the grant.

Where the language of a deed will admit of two constructions, the one less favorable to the grantor is to be adopted. (2 Devlin on Deeds, 848, and cases cited in note 2.)

"Whenever the grant of the government is upon a valuable consideration, the rule of construction ceases, and the grant is expounded exactly as it would be in the case of a private grant, favorably to the grantee." (Charles River Bridge v. Warren Bridge, 11 Pet. (U.S.) 589, 9 L.Ed. 841.)

"As in the case of a grant, the description of a thing reserved should be sufficiently definite as to enable it to be identified. Thus, when a deed reserves out of the property conveyed one acre of the land, and there is nothing to show from what particular part of the tract it is to be taken, the reservation is void for uncertainty, and the grantee is entitled to the whole tract." (1 Devlin on Deeds, sec. 222, citing Woodcock v. Estey, 43 Vt. 515; Jewett v. Ricker, 68 Me. 377; Mooney v. Cooledge, 30 Ark. 640.)

The word "constructed," as used in the patent referred to, has reference to canals constructed at the time the patent issues. The New Jersey courts have defined this word "constructed" in that sense, where similarly used, as follows:

"Act of March 6, 1877, which authorized corporations to condemn lands adjoining their roads as 'constructed' means the road actually existing." (Akers v. United New Jersey R. & C. Co., 43 N.J.L. 110, 111; 2 Words and Phrases, 1468.)

The case of Hedderly v. Johnson, 42 Minn. 443, 18 Am. St. Rep. 521, 44 N.W. 528, is peculiarly in point. That case went so far as to use the words "or hereafter to be constructed," which are significantly left out of the patent in this case. Yet the Minnesota court held that the easement depended on the fact of the then location of the line, and, unless the line had been located, the reservation was inoperative and ineffectual.

AILSHIE, C. J. Sullivan, J., and Stewart, J., concur.

OPINION

AILSHIE, C. J.

(After stating the facts.)--The only question to be determined in this case is as to the true meaning and intent...