Ide v. United States

Decision Date07 January 1924
Docket NumberNo. 37,37
PartiesIDE et al. v. UNITED STATES
CourtU.S. Supreme Court

Messrs. D. A. Haggard, Ray E. Lee, Wm. E. Mullen, and David J. Howell, all of Cheyenne, Wyo., and M. A. Rattigan, of Washington, D. C., for appellants.

Mr. Assistant Attorney General Riter, for the United States.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This is a suit by the United States to enjoin threatened interference with changes which it is making in a natural ravine, called Bitter creek, in the course of completing and perfecting an irrigation system known as the Shoshone Project. The changes consist in so straightening, widening and deepening the ravine that it may be utilized as a ditch to collect seepage from project irrigation and to carry the water so collected to other lands for further use in their irrigation. The defendants severally own small tracts of land within the project which are either crossed by or adjacent to the ravine, and some claim to have appropriated water in the ravine for the irrigation of their tracts. All, in their answers, challenge the plaintiff's right to make the changes—some on the ground that the work involves a trespass on their tracts, and others on the ground that it involves a destruction of their asserted appropriations—and on these grounds they ask affirmative relief.

After a hearing the District Court entered a decree for the defendants. In the Circuit Court of Appeals that decree was reversed with a direction to enter one for the plaintiff. United States v. Ide, 277 Fed. 373. The defendants then appealed to this court.

The project is a very large one, and was undertaken in accordance with the National Reclamation Act of June 17, 1902, c. 1093, 32 Stat. 388 (Comp. St. § 4700 et seq.). It was formally approved in 1904, work on it was begun promptly, and parts of it are now nearing completion. It comprehends the impounding of the waters of the Shoshone river and the use of many tunnels, canals and laterals in carrying and applying them to large bodies of public land, all naturally arid and susceptible of cultivation only when irrigated. The lands are disposed of in small tracts as the work progresses, each disposal carrying with it a perpetual right to water from the project canals. The terms of disposal are such that the cost of construction and maintenance ultimately will be borne by the purchasers. There are also provisions under which other owners of small tracts may acquire rights to be supplied with project water by assuming the payment of a just charge.

The entire project is within the state of Wyoming, where irrigation is practiced and the doctrine of appropriation prevails. Pursuant to a direction in section 8 of the act (Comp. St. § 4707) and in conformity with the laws of the state, permits were sought and obtained from the state officers enabling the plaintiff to proceed with the impounding of the waters of the river—which concededly were open to appropriation—and with their distribution, delivery and use in consummating the purposes of the project.

One branch of the project, known as the Garland Division, was designed to accomplish the reclamation and cultivation of a large body of lands, in the center of which was a school section of 640 acres owned by the state. The present controversy arose in that division. The ravine, called Bitter creek, and the lands of the defendants are all there. In 1908 the work had progressed to a point where the plaintiff began delivering project water to lands in that division. In 1910 the plaintiff sold a small tract adjoining the school section to one of the defendants, and in 1913 sold a like tract similarly situated to another of the defendants. Both tracts are crossed by the ravine. These sales were made under the act, and each carried a project water right. In 1910 and 1911 the state sold most of the school section in small tracts to some of the defendants. Three or four of these tracts are crossed by the ravine. No water right passed with the sales; nor was any project water right sought or obtained by the purchasers. But they attempted to appropriate, and claim they did appropriate, water found in the ravine for the irrigation of their tracts.

It is made very plain on the record that when the defendants acquired the small tracts—two from the plaintiff and the others from the state—the work in that division was well advanced and still in progress, that water was then being delivered through project canals and laterals, that irrigation under them had begun and was being extended, and that the general situation was such as to put the defendants on inquiry respecting the rights which the plaintiff possessed and might exercise in completing and perfecting the work.

With this understanding of matters about which there can be no controversy, we come to the questions brought to the attention of the courts below and pressed for decision here. Shortly stated they are: (1) Whether the plaintiff has a reserved right of way over the small tracts, under which it may convert the ravine into a ditch to be used for the purposes already indicated; (2) whether, apart from seepage from project irrigation, the ravine carries a natural stream or flow of water susceptible of effective appropriation; (3) whether the plaintiff had a right to recapture and utilize seepage from project irrigation finding its way into the ravine; and (4) if it had, whether that right has been abandoned.

1. The patents for the tracts acquired from the plaintiff expressly reserve to it rights of way 'for canals and ditches constructed or to be constructed by its authority,' and that reservation is based on a direction in the Act of August 30, 1890, c. 837, 26 Stat. 391 (Comp. St. § 4933), that there be expressed in all patents issued under the public land laws for lands west of the one hundredth meridian a reservation of rights of way 'for ditches or canals constructed by the authority of the United States.' Because the patents say 'constructed or to be constructed,' when the statute only says 'constructed,' it is contended that the reservation is broader than the direction, and is to that extent void. But we think the contention ascribes to the direction a narrower scope than Congress intended it should have. The officers of the land department, as the patents show, regard it as comprehending all canals and ditches constructed under the direct authority of the United States, whether the construction precedes or follows the issue of the patent. That the words of the direction admit of this interpretation is plain, and that it accords with the legislative purpose is demonstrable. When the direction was given the United States had no canals or ditches on the public lands west of the one hundredth meridian, either constructed or in process of construction. As yet it had not become engaged in the reclamation of its arid public lands in that region. But it was actively conducting investigations and collecting data with a view to developing and formulating a feasible plan for taking up and prosecuting that work. At an early stage of the investigations Congress became solicitous lest continued disposal of lands in that region under the land laws might render it difficult and soctly to obtain necessary rights of way for canals and ditches when the work was undertaken. To avoid such embarrassment Congress at first withdrew great bodies of the lands from disposal under the land laws. Act Oct. 2, 1888, c. 1069, 25 Stat. 526 (Comp. St. § 4696); 19 Op. Attys. Gen. 564; 9 Land Dec. 282; 11 Land Dec. 296. That action proved unsatisfactory, and, by the Act of August 30, 1890, Congress repealed the withdrawal, restored the lands to disposal under the land laws, and gave the direction that in all patents there should be a reservation of rights of way, etc. Of course the direction must be interpreted in the light of the circumstances which prompted it, and when this is done the conclusion is unavoidable that the direction is intended to include canals and ditches constructed after patent issues quite as much as those constructed before. All courts in which the question has arisen have taken this view. Green v. Willhite (C. C.) 160 Fed. 755; United States v. Van Horn (D. C.) 197 Fed. 611; Green v. Willhite, 14 Idaho, 238, 93 Pac. 971.

Wyoming has a statute granting rights of way over all lands of the state for ditches 'constructed by and under the authority of the United States' and providing that all conveyances by the state shall contain 'a reservation for rights of way' of that class. Laws 1905, c. 85. The patents issued by the state for the tracts in the school section all contain a clause showing that the title was transferred subject to all rights of way granted under the laws of the state 'or reserved...

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