In re Water Right of Utah Const. Co.

• Decision Date: 12 January 1929
• Docket Number: No. 681.,681.
• Citation: 30 F.2d 436
• Parties: In re WATER RIGHT OF UTAH CONST. CO.
• Court: U.S. District Court — District of Idaho

30 F.2d 436 (1929)

In re WATER RIGHT OF UTAH CONST. CO.

No. 681.

District Court, D. Idaho, E. D.

January 12, 1929.

Walter Griffiths, of Caldwell, Idaho, for protestants.

Edwin Snow, of Boise, Idaho, for Utah Const. Co.

CAVANAH, District Judge.

The Utah Construction Company, a citizen and resident of the state of Utah, originally instituted, in June, 1927, a proceeding before the commissioner of reclamation of the state of Idaho, under the provisions of section 5582 of the Compiled Statutes of Idaho, as amended by Laws 1921, c. 146, for the purpose of securing permission to change the point of diversion and place of use of 15.3 cubic feet per second of the waters of Big Lost river. At the hearing before the commissioner, a number of water users on the river, who were all citizens and residents of Idaho, appeared and protested against the proposed transfer. The commissioner, after a hearing, decided to grant the application of the company to the extent of 63 per cent. of the 15.3 cubic feet per second of the water rights for which application for transfer was made. Thereafter, and within sixty days from the order, nine of the persons who protested to the transfer appealed to the district court under section 5582 of the Idaho Compiled Statutes (as amended). The notice of appeal is directed to the department of reclamation and to the Utah Construction Company, and all persons interested in the application for the transfer of the water right, and was, on August 25, 1927, served on the commissioner of reclamation, but not on the Utah Construction Company. It was filed in the state district court on September 1, 1927. On August 20, 1928, the company took steps for the removal of the appeal to this court. An order was then made by the Honorable R. W. Adair, judge of said court, approving the bond and directing that no further proceedings be taken in the state court.

The reason set forth in protestants' petition for the appeal is that the purported water right sought to be transferred is subject to the right of protestants, and had been abandoned for more than five years immediately prior to the filing of the application for transfer, and that the company had no water right to transfer.

The question comes now for a hearing upon protestants' motion to remand to the state court, and the principal questions involved are: Is the commissioner of reclamation of the state of Idaho, who is a resident and citizen of the state, a necessary and indispensable party to the controversy so as to prevent the removal on the ground of diversity of citizenship? (2) Are the Utah Construction Company, who claims a water right on the one hand, and the protestants, who appeal to the state district court on the other, the real parties to the controversy? And (3) did the Utah Construction Company file its petition and bond for removal within the time required by law?

While it is stated in the motion to remand that the bond on removal is insufficient, and that the requisite jurisdictional amount does not exist, counsel on the oral argument agreed that the bond was sufficient, and that the necessary amount or value of the property in dispute does appear, and that those questions are not now presented for consideration.

The statute providing for the procedure to be taken where one feeling aggrieved by the determination of the department of reclamation in issuing or refusing to issue a certificate authorizing the transfer of the place of use of a water right on a stream, does not require any pleadings in the state court after the appeal is perfected, and no regulation of the mode of procedure is provided for. The appeal is taken by the giving and serving of a written notice on the department of reclamation, and filing in the office of the clerk of the state district court a certified copy of the application for the change of place of use and order of the department thereon, together with a petition to the court setting forth the appellant's reason for such appeal and evidence of service of notice of appeal. The matter is then heard and determined upon such competent proof as shall be adduced by the appellant and department of reclamation, or some person duly authorized in its behalf. Idaho Comp. Stats. § 5582 (as amended).

The first and second reasons urged on the motion to remand may be considered together, as they relate to the inquiry. Is the commissioner of reclamation, who is a resident and citizen of the state, an indispensable party to the controversy so as to prevent the removal on the ground of diversity of citizenship, where it also appears that the Utah Construction Company, who claims the water right, and the protestants who took the appeal, are the only parties who are carrying on the controversy concerning the water right? It will be noted that the petition on appeal sets forth that the appellants are the owners of water rights in the river, both prior and subsequent to the claimed right of the company, that the company had abandoned its right, and to permit the transfer of the company's water right would deprive appellants of the use of their water. The proceeding is similar to a suit originally instituted in either the state or federal courts involving adjudication of adverse rights to the use of water. It involves a determination of questions both of law and fact, which may be determined in a suit in the state court, and, where such questions so appear and the state court has jurisdiction, the Circuit Courts of the United States have also original jurisdiction concurrent with the courts of the state of all suits of a civil nature at common law or in equity in which there shall be a controversy between citizens of different states in which the matter in dispute, exclusive of interests and costs, is the sum or value of $3,000. USCA tit. 28, § 41(1). Did these proceedings when they were originally initiated before the department of reclamation of the state, become at once a "suit of a civil nature at common law or in equity," or did they not become such suit until the proceedings reached the state court by appeal? The phrase "suit" is clearly defined by the Supreme Court in Weston v. City of Charleston, 2 Pet. 464, 7 L. Ed. 481, where Chief Justice Marshall said: "The term `suit' is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, in which an individual pursues that remedy * * * which the law affords." "Modes of proceeding may be various, but if a right is litigated * * * in a court of justice, the proceeding by which the decision of the court is sought is a suit." See, also, Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524.

Here we have a proceeding initiated before a commissioner of the department of reclamation of the state, who exercises purely administrative functions, and who cannot be regarded as a court or tribunal having power to determine questions of law and fact in a judicial sense. But when an appeal to a court from an order of such administrative officer is provided, it then "becomes a suit, if made to a court or tribunal having power to determine questions of law and fact, either with...