Hurst v. Idaho-Iowa Lateral & Reservoir Co.

• Citation: 34 Idaho 342,202 P. 1068
• Parties: JOHN W. HURST and FRANK BIGHAM, Respondents, v. IDAHO-IOWA LATERAL AND RESERVOIR COMPANY, a Corporation, Appellant
• Decision Date: 03 September 1921
• Court: United States State Supreme Court of Idaho

202 P. 1068

34 Idaho 342

JOHN W. HURST and FRANK BIGHAM, Respondents, v. IDAHO-IOWA LATERAL AND RESERVOIR COMPANY, a Corporation, Appellant

Supreme Court of Idaho

September 3, 1921

PUBLIC LANDS-RIGHTS OF WAY FOR CANALS AND RESERVOIRS-DISPOSITION OF LANDS SUBJECT TO RIGHT OF WAY.

1. Where rights of way for reservoirs and canals have been granted over public lands of the United States, under the act of Congress of March 3, 1891, and such lands are thereafter disposed of in accordance with the provisions of the act subject to such right of way, such disposition carries with it all interest of the United States in the land, including the reversion in case of breach of condition subsequent or in case of abandonment.

2. A patentee of land over which a right of way for a reservoir has been granted, pursuant to act of Congress of March 3 1891, or his successor in interest, is invested with the right to institute proceedings to obtain a declaration of forfeiture for breach of condition subsequent and to quiet title in case of abandonment.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Action to obtain declaration of forfeiture. Judgment for defendant. Order granting new trial affirmed.

Order affirmed. Costs to respondents. Petition for rehearing denied.

Richards & Haga, for Appellant.

Upon a breach of the express or implied conditions of the grant the estate granted does not terminate ipso facto, but there must be a declaration of forfeiture, either by act of Congress or in judicial proceedings instituted by the United States under authority of Congress in order to terminate the estate granted, and this rule applies equally to right of way grants under the Irrigation Act of 1891, to the railroad right of way acts and to grants in aid of construction of railroads. ( United States v. Whitney, 176 F. 593; Union Land & Stock Co. v. United States, 257 F. 635, 168 C. C. A 585; Schulenberg v. Harriman, 21 Wall. 44, 22 L.Ed 551; Grinnell v. C. R. I. & P. Ry. Co., 103 U.S 739, 26 L.Ed. 456; United States v. Northern Pacific Ry. Co., 177 U.S. 435, 20 S.Ct. 706, 44 L.Ed. 836; Bybee v. Oregon & California R. R. Co., 139 U.S. 663, 11 S.Ct. 641, 35 L.Ed. 305; Union P. Ry. Co. v. Snow, 231 U.S. 204, 34 S.Ct. 104, 58 L.Ed. 184; Spokane & B. C. Ry. Co. v. Washington & Great N. Ry. Co., 219 U.S. 166, 31 S.Ct. 182, 55 L.Ed. 159; Spokane & B. C. Ry. Co. v. Washington & Great Northern Ry. Co., 49 Wash. 280, 95 P. 64; Utah N. & C. Ry. Co. v. Utah & C. Ry. Co., 110 F. 879; St. Louis etc. Ry. Co. v. McGee, 115 U.S. 469, 6 S.Ct. 123, 29 L.Ed. 446; Van Wyck v. Knevals, 106 U.S. 360, 1 S.Ct. 336, 27 L.Ed. 201.)

The courts, the Interior Department and the text-writers on the subject use the expressions, "condition subsequent," "condition of reverter" and "possibility of reverter" interchangeably, and apply the same rule in all such cases that the condition must be asserted by the United States government. (United States v. Whitney, supra; Oregon Short Line R. R. Co. v. Stalker, 14 Idaho 371, 94 P. 59; Spokane & B. C. Ry. Co. v. Washington & G. N. Ry. Co., supra; Northern P. Ry. Co. v. Townsend, 190 U.S. 267, 23 S.Ct. 671, 47 L.Ed. 1044; Rio Grande Western Ry. Co. v. Stringham, 239 U.S. 44, 36 S.Ct. 5, 60 L.Ed. 136; E. A. Crandall, 43 L. D. 558; Washburn on Real Property, secs. 954, 1512; 1 Tiffany on Real Property, pp. 311, 312, 334, 472-474.)

The right of re-entry by the government or its possibility of reverter for breach of conditions expressed or implied in the grant is not conveyed by patents issued subject to the right of way and cannot be asserted by the patentees of the legal subdivisions over which the right of way has been granted. ( Northern P. Ry. Co. v. Smith, 171 U.S. 260, 23 S.Ct. 671, 43 L.Ed. 157; St. Joseph etc. R. Co. v. Baldwin, 103 U.S. 426, 26 L.Ed. 578; 1 Tiffany on Real Property, 3d ed., pp. 311, 312, 334, 472-474; Jones on Easements, sec. 844; Regulatons, 36 L. D. 566; Johnson v. Spokane International Ry. Co., 25 Idaho 389, 137 P. 894; Taggart v. Great Northern Ry. Co., 208 F. 455, 211 F. 288, 129 C. C. A. 356.)

Abandonment of nonuser of a right of way due to circumstances beyond the parties' control or loss of the right to divert water for use on such right of way does not of necessity work an abandonment of the right of way. (Welch v. Garrett, 5 Idaho 639, 51 P. 605; Ada County etc. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990, 40 L. R. A. 485; 2 Kinney on Irr. & Water Rights, p. 784.)

E. G. Davis, for Respondents.

Sec. 5582, C. S., uses the term "abandoned" in the sense that the term "forfeiture" is generally used in statutes of this character. The abandonment specified by this statute involves no element of intent whatever. (2 Kinney on Irrigation, sec. 1119, p. 2022.)

A forfeiture or abandonment under sec. 5582, C. S., results whenever there has been a failure for five consecutive years to apply the water to the beneficial use for which it was appropriated, regardless of the question of intent, and whenever there has been such abandonment or forfeiture of a water right, a corresponding forfeiture follows of all rights of way for ditches, reservoirs, etc., which the owner of the fee in the lands to which such right of way attaches may enforce in a state court. (Smith v. Hawkins, 110 Cal. 122, 42 P. 453; Kinney on Irrigation and Water Rights, 2d ed., sec. 1118.)

RICE, C. J. Dunn and Lee, JJ., concur. Budge, J., McCarthy, J., did not sit at the hearing or take any part in the opinion.

OPINION

RICE, C. J.

This is in some respects a companion case to that of Carns v. Idaho-Iowa Lateral & Reservoir Co., ante, p. 330, 202 P. 1071. In this case the respondents alleged that they were the owners of certain lands in Ada county; that the appellant claims an easement in the said lands for its canal and reservoir by reason of compliance with the provisions of the act of Congress of March 3, 1891, 26 Stats. at L. 1101-1102; that the reservoir of appellant was built and constructed in the year 1904; that the irrigation project of which it is a part has never been completed as provided in said act; that the waters impounded in the reservoir had not been used for purposes of irrigation except for the years 1904 and 1905 to irrigate lands belonging to O. O. Haga, and that since that time water has been impounded in said reservoir but never put to any beneficial use and that the lateral used in 1904 and 1905 for the irrigation of the thirty-two acres of land belonging to Haga has not been used since that time and has been filled up with earth and brush and is no longer capable of conducting water.

Respondents prayed judgment that the claim of appellant to an easement in said lands be by the court adjudged and decreed without right or merit and be by the court declared forfeited and abandoned.

Appellant in its answer denied many of the allegations of the complaint, and as a separate defense set up its organization and its compliance with the provisions of the act of Congress above mentioned, and that pursuant thereto it had obtained title from the government to its reservoir site. The appellant also alleged that the respondents and others in the year 1912 filed a protest in the United States land office objecting to the approval of appellant's reservoir and right of way and the acceptance of evidence of construction of the same; that appellant caused an answer to be filed to said protest and after due proceedings the matter was submitted to the United States general land office at Washington, D. C., and a decision there rendered holding such protest for dismissal, subject to the right of appeal; that no appeal was taken and the decision of the general land office became final, the protest was dismissed and the case closed; that thereafter and on March 3, 1914, the Secretary of the Interior of the United States approved the map of amended definite location and the amended field-notes and accepted proof of construction and completion of the reservoir; that all questions raised in this proceeding were involved in the hearing before the Department of the Interior, and by reason of the action of the department became res adjudicata as against respondents, and all persons claiming or to claim through or under them; that respondents made entry and received patent to their lands subject to the rights of appellant.

A trial was had and a decree entered in favor of appellant. Thereafter the trial court set aside its decision and decree and granted a new trial. The ground upon which the new trial was granted was stated by the court to be "that the decision of the court is against the law wherein it was held in the third conclusion of law that the title of defendant to its reservoir site 'continues so long as the land is used for reservoir purposes,' as distinguished from purposes of irrigation, as prescribed in the act of March 3, 1891; and wherein it was held in the fourth conclusion of law 'that there has been no abandonment of said reservoir site by defendant'; it being the desire of the trial court to re-examine this finding in the light of section 5582, Compiled Statutes of Idaho; and wherein the decision of the court held in effect that the right of way for a reservoir can continue to be held in the event of abandonment of the water right which formed the basis of the grant of the right of way for reservoir purposes, it being the desire of the trial court to re-examine this finding in the light of section 5582, Compiled Statutes of Idaho." The appeal is from the order granting the motion for a new trial.

Appellant contends that the trial court erred in granting a new trial. The contention is made that only the United States can take advantage of...