Marsters v. United States

• Decision Date: 05 September 1916
• Docket Number: 2654.
• Parties: MARSTERS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

236 F. 663

MARSTERS et al. v. UNITED STATES.

No. 2654.

United States Court of Appeals, Ninth Circuit.

September 5, 1916

Joseph H. Peterson, Atty. Gen., of Idaho, E. G. Davis, of Boise Idaho, T. C. Coffin, of Pocatello, Idaho, and Herbert Wing of Boise, Idaho, for appellants.

J. L McClear, U.S. Atty., J. R. Smead, Asst. U.S. Atty., and B. E Stoutemyer, Counsel U.S. Reclamation Service, all of Boise, Idaho.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS Circuit Judge.

The Boise river is one of the streams of Idaho, the waters of which are used in part for the purpose of irrigation in Ada and Canon counties of that state, and the United States is one of the appropriators, under an application filed by certain citizens and residents of the state with its state engineer for permit to divert and appropriate 5,200 cubic feet per second of the said waters for the irrigation of certain lands within the state, now known as the 'Government Boise project.' The application having been approved by the state engineer and a permit granted to the applicants, the latter was assigned to the Secretary of the Interior, who, under and in pursuance of the Act of Congress of June 17, 1902, c. 1093, 32 Stat. 388 (Comp. St. 1913, Secs. 4700-4708), known as the Reclamation Act, caused surveys to be made and work to be done to the extent of appropriating and using 1,647 second feet of the waters of the river, with the approval of the state engineer, in pursuance of the project, the date of the government's appropriation being December 4, 1903. Prior to that date, however, there had been and then were in existence 134 prior appropriations of the waters of the river, for the purpose of adjudicating the rights and priorities of which an action had been commenced in the preceding year of 1902 in one of the courts of the state, to which action the United States therefore could not have been made a party, and has not since been made a party. The United States diverted the water so appropriated and claimed by it by means of headgates and a canal constructed on its own land, and was so using it in July, 1913, when the appellants, acting, respectively, as water commissioner and water master of water division No. 3 of the state of Idaho, and claiming that it was necessary to deprive the government of a part of the water which it was thus diverting, in order that prior appropriators might be supplied with the water to which they were entitled, first applied to the manager of the government project to turn into the river the amount so claimed to be so needed, which request being refused, the appellants, acting under the advice of the Attorney General of the state, on the 11th day of July, 1913, entered upon the property of the United States and cut the locks fastening the said gates, took a part of the water then being diverted and used by the government, and proceeded to regulate the flow of the water of the river as they claimed it should be. The next day, July 12, 1913, the United States commenced in the court below the present suit against the appellants as defendants, to recover damages for their action and an injunction restraining such acts. The court below gave the complainant judgment for $1,000 besides costs, from which judgment the present appeal was taken.

Sections 3274, 3275, and 3277 of the Revised Codes of Idaho as amended in 1909 (Session Laws 1909) are as follows:

'Sec. 3274. The board of irrigation shall divide the state into water districts in such manner that each public stream and tributaries, or independent source of water supply, shall constitute a water district; provided, that any stream or water supply, when the distance between the extreme points of diversion thereon is more than forty (40) miles, may be divided into two (2) or more water districts; and provided, that any stream tributary to another stream may be constituted into a separate water district when the use of the waters therefrom does not affect or conflict with the rights to the use of the waters of the main stream; and provided, that any stream may be divided into two (2) or more water districts, irrespective of the distance between the extreme points of diversion, where the use of the waters of such stream by appropriators in one district does not affect or conflict with the use of the waters of such stream by appropriators outside such district; and, provided, that this section shall not apply to streams or water supplies whose priorities of appropriation and use have not been adjudicated by the courts having jurisdiction thereof.

'Sec. 3275. There shall be held on the first Monday of March of each year, commencing at 2 o'clock p.m., a meeting of all persons owning or having the use of an adjudicated right, in the waters of the stream or water supply comprising such district. Such meeting shall be held at some place within the water district, convenient to a majority of those entitled to vote thereat, which place shall be designated by the water commissioner of the district, and he shall, between January first and February first of each year, file such designation with the county auditor of the county or counties within which such water district is situated and shall notify by mail all persons, companies, or corporations known by him to own or claim the use of the waters of such district, and should said water commissioner fail to file such designation by February first, the district judge of the district within which such water district or portion thereof, is situated, shall, upon application of some interested person, designate the place of holding such meeting, and in case the first Monday in March has passed, such district judge may also designate the time of holding such meeting. At such meeting there shall be elected a water master for such water district, and such other regular assistants as such meeting shall deem necessary, and such meeting shall, prior to the election of such water master and assistants, fix the compensation to be paid them, such compensation not to exceed four dollars ($4.00) per day, during the time actually engaged in the performance of their duties. At such meeting each person present owning or having the use for the ensuing irrigation season of any adjudicated right equal to ten (10) inches of water in the stream or water supply comprising such water district shall be entitled to one (1) vote. Such meeting shall choose a chairman and secretary and shall determine the manner and method of electing water masters and assistants. Within five (5) days after such meeting the chairman and secretary shall forward a certified copy of the minutes of such meeting to the water commissioner of the district; provided, that a corporation shall be considered a person for the purpose of this section and shall cast its vote by some one to be designated by the corporation; and provided, that each stockholder in said corporation shall be entitled to as many votes as he shall have units of ten miners' inches of water, regularly adjudicated, in the stream or water supply comprising such water district; and provided, that should said meeting not be held or not choose a water master, or not fix the compensation thereof, then the water commissioner of the district may appoint such water master, and fix his compensation, not exceeding four dollars ($4.00) per day. The water commissioner may, at any time, remove any water master within his division for failure to perform his duty as such water master, upon complaint in that respect being made to him in writing by any person owning or having the right to the use of an adjudicated right in such district, and the water commissioner may appoint a successor for the unexpired term. Before entering upon the duties of his office, said water master shall take and subscribe an oath before some officer authorized by the laws of the state to administer oaths, to faithfully perform the duties of his office, and shall file with the clerk of the district court in the county in which said water master resides, said oath and his official bond in the penal sum of five hundred dollars ($500.00), with not less than two (2) sureties, to be approved by the judge of the probate court of the county in which he resides, and conditioned for the faithful discharge of the duties of his office.'

'Sec. 3277. It shall be the duty of said water master to distribute the waters of the public stream, streams, or water supply, comprising his water district, among the several ditches taking water therefrom according to the prior rights of each respectively, in whole or in part, and to shut and fasten, or cause to be shut and fastened, under the direction of the water commissioner of his district, the headgates of ditches heading from such stream, streams or water supply, when in times of scarcity of water it is necessary so to do in order to supply the prior rights of others in such stream or water supply; provided, that any person or corporation claiming the right to the use of the waters of the stream or water supply comprising a water district, but not owning or having the use of an adjudicated right therein, shall, for the purpose of distribution, during the scarcity of water, be held to have a right subsequent to the adjudicated rights in such stream or water supply, and the water master shall close all headgates of ditches having no adjudicated right if necessary to supply adjudicated rights in such stream or water supply.'

The foregoing statutory provisions constitute what is claimed to be authority for the acts of the water commissioner and water master complained of. It is readily seen that it is expressly declared in the last proviso of section 3274 that the section 'shall not apply to streams or water...