Griffiths v. Cole

• Decision Date: 11 October 1919
• Docket Number: 648.
• Citation: 264 F. 369
• Parties: GRIFFITHS et al. v. COLE et al. (BLACK CANYON IRRIGATION DIST., Intervener).
• Court: U.S. District Court — District of Idaho

264 F. 369

GRIFFITHS et al. v. COLE et al. (BLACK CANYON IRRIGATION DIST., Intervener).

No. 648.

United States District Court, D. Idaho, Southern Division.

October 11, 1919

John J Plowhead and Griffiths & Griffiths, all of Caldwell, Idaho and J. B. Eldridge, of Boise, Idaho, for plaintiffs.

J. L McClear, U.S. Atty., and B. E. Stoutemyer, both of Boise Idaho, for defendants.

R. B. Scatterday, W. C. Bicknell, and J. M. Thompson, all of Caldwell, Idaho, for intervener.

DIETRICH District Judge.

The plaintiff Griffiths has on foot a plan for the irrigation of about 6,000 acres of land, known as the Black Canyon tract, situate on the north side of and near the Boise river, not far from the town of Notus. The water for this purpose is to be gotten from drainage canals constructed by the United States Reclamation Service, either for itself or in co-operation with the irrigation districts, in and along certain sloughs in the vicinity of Caldwell, on the south side of the Boise river. In furtherance of his purpose, he made application to the State Engineer on January 22, 1916, for a permit to appropriate 25 second feet of the water of Mason creek and 50 second feet of the water of Wilson slough, the permit being granted as of that date, with the statement that the water in question was 'seepage water made available by drainage to the points of diversion'; and on March 9, 1918, he made an additional application for a permit to appropriate 25 second feet from Elijah slough and an equal amount from Indian creek, which application was approved as of that date. He also secured from the State Land Board a certificate authorizing him to sell water for the irrigation of the lands in question. He caused a line to be surveyed for the proposed canal, at small cost bought some used pipe for conveying the water across the river, advised landowners of his plans and of the terms upon which water rights would be sold, caused forms for bonds and contracts to be printed, and at one time secured conditional bids for the construction work. He has made no contracts, however, either for the sale of water or for constructing the system. Neither had he acquired a right of way for any considerable distance at the time this suit was commenced, on November 26, 1918.

The defendants are alleged to be the officers and agents employed by the Reclamation Service, in charge of the Boise (formerly Payette-Boise) project. It is doubtful whether all of them were so employed when the suit was begun, but the question is not thought to be of controlling importance. The Boise project has been under construction quite continuously since 1906, and in so far as it relates to lands south of the Boise river was practically completed in 1917. The original plans contemplated also the irrigation of a large area on the north side of Boise river, including the Black Canyon tract, the water for that purpose to be gotten from the Payette river; but for reasons which the records do not make very clear, and which perhaps are not highly material, this part of the general plan seems to have been abandoned, and from time to time during the years from 1908 to 1912 the lands were released from the order of withdrawal and restored to the public domain. In the meantime, however, many of the lands here in question were entered and occupied by settlers in the expectation that the government would supply water for their irrigation; and, with the hope that either through the government or some other agency water would be made available, improvements were put upon the lands and title secured, so that when the suit was commenced there was less than 100 acres of the entire Black Canyon tract for which patent had not issued.

Apparently, as a consequence of the storage of water in Deer Flat reservoir, an important feature of the Boise project, and the distribution of water for irrigation purposes, and the attendant increase in the area of irrigated land, the ground-water levels began to rise rapidly a few years ago, and to avoid widespread damage to the lower lands it became imperatively necessary to provide drainage facilities. Certain irrigation districts owning the older irrigation systems were contributing to and threatened by the peril, and accordingly, in co-operation with them, the Reclamation Service constructed the drainage canals referred to, which, of course, followed the natural depressions of the land and the sloughs and high-water channels wherever practicable, and, while in the plaintiff's application for permits he designates certain sloughs and streams, the water he seeks to appropriate is chiefly drainage water gathered into artificial channels constructed therein. The right to construct and maintain these drainage conduits upon the lines adopted is not questioned, and admittedly the plaintiff has not secured the consent of the government or the irrigation districts to go upon them or place any obstruction therein or cut their banks, as of necessity he will be compelled to do if he diverts any water therefrom. There is a suggestion in the record that the Reclamation Service expressly waived such rights as the government may have had in the premises, and is now estopped from questioning the plaintiff's claim; but the contention is not sustained by the evidence. Shortly after the oral conference upon which plaintiff relies, he was formally advised that, though the government had not matured its plans for utilizing the water, he would not be permitted to take it.

On January 2, 1918, the Reclamation Service entered into a contract with the Black Canyon irrigation district intervener herein, by which it was agreed, subject to the requisite appropriations being made by Congress, that it, the Reclamation Service, would, upon the terms and conditions stipulated, furnish water for the irrigation of the district lands; it being intended to use these drainage waters for the purpose. And subsequently surveys were made for a canal, and notices were sent out to the landowners across whose lands a right of way was claimed under the provisions of the Act of August 30, 1890 (26 Stat. 391), and in October, 1918, one of the defendants, acting upon behalf of the government, made application to the State Engineer for a permit to appropriate the water, but without relinquishing the claim that, by reason of the facts already explained, it had a superior right to the water-- which application was granted as of October 19, 1918. In one section, along a steep hillside, the canal route adopted by the plaintiff and that selected by the Reclamation Service are either identical or partially overlap each other; the interference being due to the fact that...