Hunter v. United States

• Decision Date: 19 December 1967
• Docket Number: No. 20093.,20093.
• Citation: 388 F.2d 148
• Parties: Roy HUNTER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

388 F.2d 148 (1967)

Roy HUNTER, Appellant, v. UNITED STATES of America, Appellee.

No. 20093.

United States Court of Appeals Ninth Circuit.

December 19, 1967.

COPYRIGHT MATERIAL OMITTED

Butterworth & Smith, David G. Waller (argued) Los Angeles, Cal., for appellant.

Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis (argued) Carl L. Sandstrom, Dept. of Justice, Washington, D.C., Manuel L. Real, U.S. Atty., James R. Akers, Jr., Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and KOELSCH, Circuit Judges, and TAYLOR, District Judge.

KOELSCH, Circuit Judge.

The United States, complaining that Roy Hunter persistently grazed and watered his cattle within the boundaries of the Death Valley National Monument without a permit from the National Park Service, brought this suit against him in the United States District Court to secure an injunction against further trespasses.¹

Hunter urged justification; in addition, he sought a declaration that he possessed water and grazing rights. He alleged that long before the monument was established his predecessors in interest continually had watered livestock, which they pastured within its present boundaries, at 26 springs and a stream therein. His theory was that this taking and use of the water constituted an appropriation vesting in his predecessors a water right, together with an appurtenant right of way to graze cattle, which rights the general government was bound to honor under the provisions of the Act of 1866, Rev.Stat. § 2339 (1875), 43 U.S.C. § 661, para. 1 (1964), formerly Act of July 26, 1866, ch. 262, § 9, 14 Stat. 253 (hereinafter cited as Act of 1866).²

The District Court found that:

"7. Prior to 1880 Wm. Lyle Hunter, grandfather and predecessor of defendant, Roy Hunter, discovered certain springs within the area now known as Death Valley National Monument, and developed said springs by diverting spring water through pipes or other conduits into tanks and troughs constructed by him for livestock watering purposes.

8. Defendant, Roy Hunter, and his predecessors in interest, his father and grandfather, have watered cattle and other livestock from the tanks and troughs adjacent to said springs and from a free flowing stream within said area, have maintained the original diversions and said use, and have grazed cattle and other livestock adjacent to said sources of water continuously since prior to 1880.

9. The watering of cattle and livestock by defendant and his predecessors in interest from the springs and from the free flowing stream within the Death Valley National Monument constituted a beneficial use of said waters."

Despite these favorable findings, the court concluded that Hunter possessed no rights either to the waters or in the lands and granted an injunction. Hunter has appealed.

1. The Water Right:

"For many years prior to the passage of the Act of July 26, 1866, c. 262, § 9, 14 Stat. 251, 253 (30 USCA § 51 and note 43 USCA § 661, par. 1 and note) the right to the use of waters for mining and other beneficial purposes in California and the arid region generally was fixed and regulated by local rules and customs. The first appropriator of water for a beneficial use was uniformly recognized as having the better right to the extent of his actual use. * * * The rule generally recognized throughout the states and territories of the arid region was that the acquisition of water by prior appropriation for a beneficial use was entitled to protection * * *. The rule was evidenced not alone by legislation and judicial decision, but by local and customary law and usage as well. Basey v. Gallagher, 20 Wall. 670, 683-684, 87 U.S. 670, 683-684, 22 L. Ed. 452 (1874); Atchison v. Peterson, 20 Wall. 507, 512-513, 87 U.S. 507, 512-513, 22 L.Ed. 414 (1874).

This general policy was approved by the silent acquiescence of the federal government, until it received formal confirmation of Congress by the Act of 1866, supra. Atchison v. Peterson, supra. Section 9 of that act provides that:

`Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed: * * *\' * * * And in order to make it clear that the grantees of the United States would take their lands charged with the existing servitude, the Act of July 9, 1870, c. 235, § 17, 16 Stat. 217, 218 (30 USCA § 52 and note, 43 USCA § 661, par. 2 and note) amending the Act of 1866 provided that:

`* * * All patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory.\'

The effect of these acts is not limited to rights acquired before 1866. They reach into the future as well, and approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land states, as the test and measure of private rights in and to the nonnavigable waters on the public domain." California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 154-155, 55 S.Ct. 725, 727, 79 L.Ed. 1356 (1935).

The trial court in the instant case concluded that "* * * no legal basis for the acquisition of an appropriation to water by virtue of local customs, laws or decisions of California has been established." We believe that the District Court misconstrued the applicable local authority and that Hunter did establish a legal basis for the acquisition of an appropriation to water by virtue of local decisions.

It is clear that Hunter need prove the appropriative right only by local customs, laws or decisions, for "the union of the three conditions in any particular case is not essential to the perfection of a right by priority." Basey v. Gallagher, 20 Wall. 670, 684, 87 U.S. 670, 684, 22 L.Ed. 452 (1874). The local customs regarding proprietorship by appropriation have long since become crystalized into law by judicial decision or statute. As Mr. Weil notes in his work entitled Water Rights in the Western States, vol. 1, § 635 (3d ed. 1911):

"The local customs referred to in United States Revised Statutes, section 2339 Act of 1866, need not be alleged or proved. * * * The principle is, as stated in Basey v. Gallagher supra, that the rules of appropriation have everywhere in the West now passed into judicial decision or statute or both, thereby superseding the original customs on which decisions and statutes are based."

In 1872 the California Legislature enacted statutes providing for the appropriation of public waters; but the Supreme Court of that State held that the statutory method was not exclusive:

"One may by a prior actual and completed appropriation and use, without proceeding under the code, acquire a right to the water beneficially used, which will be superior and paramount to the title of one making a subsequent appropriation from the same stream in the manner provided by that statute."

Lower Tule River Ditch Co. v. Angiola Water Co., 149 Cal. 496, 499, 86 P. 1081, 1082 (1906); See also Duckworth v. Watsonville Water and Light Co., 158 Cal. 206, 211, 110 P. 927, 929-930 (1910). Thus it was not incumbent upon Hunter to establish compliance with a positive provision of California law and furthermore no statute precluded his claim.

Judicial authority makes the law on appropriation quite clear. Justice Field, commenting upon the declaration of the California Supreme Court in Tartar v. Spring Creek Water and Mining Co., 5 Cal. 395 (1855), which announced the settled policy of the State regarding recognition of rights, added: "Ever since that decision it has been generally held throughout the Pacific States and Territories that the right to water by prior appropriation for any beneficial purpose is entitled to protection." Basey v. Gallagher, supra, 20 Wall. at 683. Moreover, Justice Field unequivocally declared: "No distinction is made in those States and Territories by the custom of miners or settlers, or by the courts, in the rights of the first appropriator from the use made of water, if the use be a beneficial one." Basey v. Gallagher, supra at 682.

To constitute an appropriation, therefore, there must co-exist "the intent to take, accompanied by some open, physical demonstration of the intent, and for some valuable use." McDonald & Blackburn v. Bear River and Auburn Water and Mining Co., 13 Cal. 220, 232-233 (1859). The outward manifestation is most often evidenced by a diversion of the water from its natural source prior to the use; Simons v. Inyo Cerro Gorda Mining & Power Co., 48 Cal.App. 524, 192 P. 144 (1920) hearing denied by California Supreme Court, 48 Cal.App. 541, 192 P. 152 (1920) but it also can be evidenced in other ways, for example, as in this case, by watering livestock directly from the source Steptoe Livestock Co. v. Gulley, 53 Nev. 163, 295 P. 772 (1931) or as in other cases by placing water wheels into a stream in order to use the flowage as power to operate a mill located on the bank. Ortman v. Dixon, 13 Cal. 33 (1859); Tartar v. Spring Creek Water and Mining Co., supra.

In this case there is no lack of proof of the asserted appropriation; to the contrary, a clearer showing could hardly be imagined. The Hunters' intent to use the water is made plain by the evidence. Year after year for nearly a century they have pastured their livestock in this isolated enclave, surrounded by miles of impassable desert; except for the water provided by these springs and the...