Kern River Co v. United States
| Decision Date | 21 November 1921 |
| Docket Number | No. 50,50 |
| Parties | KERN RIVER CO. et al. v. UNITED STATES |
| Court | U.S. Supreme Court |
[Syllabus from pages 147-148 intentionally omitted] Mr. James A. Gibson, of Los Angeles, Cal., for appellants.
Mr. Assistant Attorney General Riter, for the United States.
A right of way for a canal, several miles in length, through lands of the United States in a public forest reserve in California, is here in controversy. The right of way was acquired by the Kern River Company, one of the appellants, through the approval by the Secretary of the Interior of an original map of the canal on April 14, 1899, and of an amended map on November 27, 1905. The purpose of the amended map was to conform the right of way to intervening changes in the line of the canal. The Secretary's approval, in both instances, was sought and was given under sections 18-21 of the Act of March 3, 1891, c. 561, 26 Stat. 1095 (Comp. St. §§ 4934-4937, as supplemented by section 2 of the Act of May 11, 1898, c. 292, 30 Stat. 404 (Comp. St. 4938). The canal was constructed between July, 1902, and December, 1904, and ever since has been used for developing electric power, but never for irrigation. The power is transmitted to other parts of the state and there commercially supplied for use in operating electric railway systems, lighting municipalities, and operating pumping appliances on farms and ranches. The appellants other than the Kern River Company claim under and through that company.
This suit in equity was brought by the United States to obtain (a) a cancelation of the Secretary's approval of the two maps on the ground that it was obtained fraudulently by falsely representing that the right of way was sought with irrigation as the main purpose and the development of electric power as a subsidiary purpose, when in truth the latter was the sole purpose, or (b) a judicial declaration and enforcement of a forfeiture of the right of way on the ground that, although granted on condition that it be used mainly for irrigation, it in fact has been used solely for developing electric power, and its use for irrigation is precluded by a binding and continuing agreement on the part of the grantee. In the bill the first phase of the suit is set forth with greater precision and detail than are shown in the presentation of the other; but the other is there in full substance.1
The bill, while thus assailing the right of way obtained under the acts of 1891 and 1898, concedes that the appellants may yet apply for and obtain, under the Act of February 15, 1901, c. 372, 31 Stat. 790 (Comp. St. § 4946), a permit or license to use the land for the purpore to which they now are applying it.
After issue was joined the cause was heard on an agreed statement of facts supplemented by the testimony of a single witness and by some decumentary proof.
The District Court concluded that the charge of fraud in procurding the Secretary's approval was not sustained, and that, in the absence of an act of Congrees declaring a forfeiture or providing for a suit to that end, a forfeiture could not be decreed by the court. The bill was accordingly dismissed. On appeal by the United States the Circuit Court of Appeals concluded that the charge of fraud was adequately proved, and also that, if the Secretary acted with full knowledge of the facts, he exceeded his authority. So the decree of dismissal was reversed, with directions that a decree be entered canceling the Secretary's approval, and also enjoining the further maintenance of the canal unless within a reasonable time the claimants applied for and obtained a lawful permit or license to use the same. 264 Fed. 412.
The Act of 1891, §§ 18-21, provided for rights of way through the public lands and reservations of the United States for ditches, canals and reservoirs for the purpose of irrigation but not for any other purpose. These rights of way were to be obtained by making application at the local land office and ultimately securing the approval by the Secretary of the Interior of a map of the ditch, canal or reservoir. There was no provision for a patent. The grant was to become effective when the approval was given; that is to say, the right of way was then to vest in the applicant for the purpose indicated in the act. The approval, once given, could not be recalled or annulled by the Secretary, either for fraud practiced in procuring it or for mistake in giving it. To do that it was necessary to resort to a suit in equity. Noble v. Union River Logging R. R. Co., 147 U. S. 165, 172, 176, 13 Sup. Ct. 271, 37 L. Ed. 123. The right of way intended by the act was neither a mere easement nor a fee simple absolute, but a limited fee on an implied condition of reverter in the event the grantee ceased to use or retain the land for the purpose indicated in the act. Rio Grande Ry. Co. v. Stringham, 239 U. S. 44, 47, 36 Sup. Ct. 5, 60 L. Ed. 136.
An Act of May 14, 1896, c. 179, 29 Stat. 120 (Comp. St. § 4944), made express provision for rights of way through the public lands and forest reservations for the purpose of developing electric power; but this act differed from the one of 1891 in several respects, the one of most significance being that what the beneficiary was to receive was a revocable permit or license, and not a limited fee. This act was superseded by that of February 15, 1901, supra, which deals with the same subject along similar lines. Utah Power & Light Co. v. United States, 243 U. S. 389, 407, 37 Sup. Ct. 387, 61 L. Ed. 791.
The act of May 11, 1898, enacted while those of 1891 and 1896 were in force, provided in its second section:
'That the rights of way for ditches, canals, or reservoirs heretofore or hereafter approved under the provisions of sections eighteen, nineteen, twenty, and twenty-one of the act entitled 'An act to repeal timber-culture laws, and for other purposes,' approved March third, eighteen hundred and ninety-one, may be used for purposes of a public nature; and said rights of way may be used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation.'
This section did no more than to permit rights of way obtained under the act of 1891, the use of which was restricted to irrigation, to be also used for the other purposes named in the section. Irrigation was still to be the 'main purpose,' and the other purposes were to be subsidiary. True, there are in the section words and punctuation from which it might be argued that the 'purposes of a public nature' were to be independent and might even be exclusive; but the fair import of the section as a whole is the other way. Besides, its legislative history indicates that what actually was intended was to recognize irrigation as the primary purpose and to make all the other purposes secondary to it. When the bill was introduced in Congress it contained a provision declaring, without any qualification, that rights of way under the act of 1891 might be used for supplying water for 'domestic, public and other beneficial uses.' The committee in charge of the bill sought the...
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