North Side Canal Co. v. Twin Falls Canal Co.

Decision Date19 April 1926
Docket NumberNo. 1198.,1198.
Citation12 F.2d 311
PartiesNORTH SIDE CANAL CO., Limited, v. TWIN FALLS CANAL CO., et al.
CourtU.S. District Court — District of Idaho

Walters & Parry, of Twin Falls, Idaho, for plaintiff.

H. E. Ray and B. E. Stoutemyer, both of Boise, Idaho, for defendant Work.

CUSHMAN, District Judge.

Plaintiff alleges appropriation and right to prior use of certain amounts of the waters of Snake river, alleged to have been by it and its predecessors in interest, upon several different dates, diverted in the state of Idaho, and in the waters of which stream it is alleged the defendants claim some right, title, or interest. The prayer of the bill is: That plaintiff be decreed, for use upon certain lands, 3,300 second feet of such waters, with certain priority dates; that defendants be required to set up in this cause such claims as they may have to such waters; that the right, title, interest, and claim of each defendant be determined; and that those of the defendants having rights in such waters of priority dates subsequent to those claimed by the plaintiff be enjoined from asserting any claims adverse to those of plaintiff.

It appears from the bill that in 1913 the plaintiff and certain of the defendants were decreed rights in the waters of this stream; one of the defendants being the Secretary of the Interior of the United States, who was awarded the use of 1,725 second feet of water, diverted at Minidoka dam. Plaintiff now seeks to establish its right, title, and right to prior use of certain diversions not covered by that decree, and in certain other respects asks a decree confirmatory of the former decree. It is alleged that the plaintiff and certain of the defendants are citizens of Idaho, that the defendant Hubert W. Work, Secretary of the Interior, is a citizen of Colorado. The Secretary has removed the cause to this court, alleging that the suit involves a property right of the United States in the waters of Snake river, that the suit is one arising under the Constitution and laws of the United States, and that there is diversity of citizenship, and a separable controversy. Plaintiff moves to remand.

Plaintiff cites: Twin Falls Canal Co. v. Foote (C. C.) 192 F. 583; City of Stanfield v. Umatilla River Water Users' Ass'n (C. C.) 192 F. 596; Furey v. Taylor, 127 P. 676, 22 Idaho, 605; Frost v. Alturas Water Co., 81 P. 996, 11 Idaho, 294; Simkins Federal Practice, p. 1156; Lomax v. Foster Lbr. Co. et. al., 174 F. 959, 99 C. C. A. 463; In re Silvies River (D. C.) 199 F. 495; Davey v. Yolo Water & Power Co. et al. (D. C.) 211 F. 345.

In addition, defendants cite the following cases: Whiffin v. Cole (D. C.) 264 F. 252; Sonnentheil v. Christian Moerlein Brewing Co., 19 S. Ct. 233, 172 U. S. 401, 43 L. Ed. 492; Moon on Removal of Causes, pp. 259 to 263; Loop v. Winter's Estate (C. C.) 115 F. 362; Camp v. Field (C. C.) 189 F. 285; Hughes, Fed. Proc. (2d Ed.) par. 132, p. 380; Dishon v. Railroad Co., 133 F. 471, 66 C. C. A. 345; Atlanta, K. & N. Ry. Co. v. So. R. R. Co., 153 F. 122, 82 C. C. A. 256, 11 Ann. Cas. 766; Frost et al. v. Idaho Irrigation Co., 114 P. 38, 19 Idaho, 372; Taylor v. Hulett et al., 97 P. 37, 15 Idaho, 265, 19 L. R. A. (N. S.) 535; McMullen v. Hallock Cattle Co. (C. C.) 193 F. 282; 3 Foster, Federal Prac. (6th Ed.) par. 540; Nelson v. Hennessey (C. C.) 33 F. 113; Chattanooga, R. & C. R. Co. v. Cincinnati, N. O. & T. P. Ry. Co. (C. C.) 44 F. 456; Rivers v. Bradley (C. C.) 53 F. 305; Hukill v. Maysville, etc., Co. (C. C.) 72 F. 745; Prince v. Illinois Cent. R. Co. (C. C.) 98 F. 1; Mahon v. Somers (C. C.) 112 F. 174; Loop v. Winter's Estate (C. C.) 115 F. 362; Sidway v. Missouri Land, etc., Co. (C. C.) 116 F. 381; Kelly v. Chicago & A. Ry. Co. (C. C.) 122 F. 286; Carothers v. McKinley Mining & Smelting Co. (C. C.) 122 F. 305; Bryce v. Southern Ry. Co. (C. C.) 122 F. 709; Henry v. Illinois Cent. Ry. Co. (C. C.) 132 F. 715; Boatmen's Bank v. Fritzlen, 135 F. 650, 68 C. C. A. 288; Fritzlen v. Boatmen's Bank, 29 S. Ct. 366, 212 U. S. 364, 53 L. Ed. 551; Axline v. Toledo, etc., Co. (C. C.) 138 F. 169; Curtis v. Cleveland, etc. Co. (C. C.) 140 F. 777; Iowa Lillovet Gold Min. Co. v. Bliss (C. C.) 144 F. 446; Cella v. Brown, 144 F. 742, 75 C. C. A. 608; Chicago, R. I. & P. Ry. Co. v. Stepp (C. C.) 151 F. 908; Floyt v. Shenango Furnace Co. (C. C.) 186 F. 539; McAllister v. Chesapeake & O. Ry. Co. (D. C.) 198 F. 660; Price v. Southern Power Co. (D. C.) 206 F. 496; Richardson v. Southern Idaho Water Power Co. (D. C.) 209 F. 949; English v. Supreme Conclave I. O. of H. (D. C.) 235 F. 630; Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514; Hervey v. Illinois Midland Ry. Co., Fed. Cas. No. 6,434; Carraher v. Brennan, Fed. Cas. No. 2,441; Girardey v. Moore, Fed Cas. No. 5,462; Farmers' Loan & Trust Co. v. Chicago, P. & S. W. R. Co., Fed. Cas. No. 4,665; Sheldon v. Keokuk N. L. Packet Co. (C. C.) 1 F. 789; Corbin v. Boies (C. C.) 18 F. 3; Atlantic & V. Fertilizing Co. v. Carter (C. C.) 88 F. 707; Swan v. Mansfield, etc., Co., 7 Ohio Dec. 669, Manufacturers' Commercial Co. v. Brown Alaska Co. (C. C.) 148 F. 308; S. Clare Mower v. J. B. Bond (D. C.) 6 F.(2d) 890, decided by Judge Dietrich; Burley v. United States, 179 F. 1, 102 C. C. A. 429, 33 L. R. A. (N. S.) 807; Winters v. United States, 28 S. Ct. 207, 207 U. S. 564, 52 L. Ed. 340; Wyoming v. Colorado, 42 S. Ct. 552, 259 U. S. 419, 66 L. Ed. 999; New York Canal Co. v. Bond (C. C. A.) 265 F. 228; Id. (D. C.) 273 F. 825; Payette-Boise Water Users' Ass'n v. Cole (D. C.) 263 F. 734; Quigg v. Dietz (unreported); Whiffin v. Cole (C. C. A.) 264 F. 252; Blevins v. Hines (D. C.) 264 F. 1005; Taylor v. Hewitt et al., 97 P. 37, 15 Idaho, 265, 19 L. R. A. (N. S.) 535; Frost et al. v. Idaho Irrigation Co., 114 P. 38, 19 Idaho, 372.

The present suit is not removable under R. S. § 643, Comp. St. § 1015, for the Secretary is neither an officer of the revenue, of the United States court, or either house of Congress. Pacific Live Stock Co. v. Oregon Water Board, 36 S. Ct. 637, 241 U. S. 440, 60 L. Ed. 1084, has been cited against the right of removal. In that case the question was one of diversity of citizenship alone, and the proceeding sought to be removed was not yet in any court; neither did the United States appear to have any interest in the waters involved. Sloan Shipyards v. U. S. Fleet Corp., 42 S. Ct. 386, 258 U. S. 549, 66 L. Ed. 762, and cases of that character have no application, for under the Reclamation Act the government is not acting as a corporation organized under local laws for the conduct of business. It is saving, conserving, and developing a part of its public lands by the use of the waters flowing through them.

The present case is one where the United States is the real party defendant. Minnesota v. Hitchcock, 22 S. Ct. 650, 185 U. S. 373, 385, 46 L. Ed. 954; West Side Irr. Co. v. United States, 246 F. 212, 158 C. C. A. 372; Whiffin v. Cole (D. C.) 264 F. 252. The United States being the real party in interest, and the Secretary having no interest other than that of the United States, his being a citizen of a state other than Idaho has no bearing. Oregon v. Hitchcock, 26 S. Ct. 568, 202 U. S. 60, 50 L. Ed. 935. The suit being one against the United States, the court is without jurisdiction, in the absence of an act of Congress waiving immunity from suit. Naganab v. Hitchcock, 26 S. Ct. 667, 202 U. S. 473, 50 L. Ed. 1113.

The suit necessarily involves a consideration of the Carey Act (section 4, c. 301, of the Laws of 1894, 28 Stat. 422, Comp. St. § 4685), and the Reclamation Act of June 17, 1902 (chapter 1093, 32 Stat. Comp. St. § 4700 et seq.), for under these laws the Secretary, as appears by the bill, is asserting rights in such waters; therefore the case is one arising under the laws of the United States. Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648; Sonnentheil v. Moerlein Brewing Co., 19 S. Ct. 233, 172 U. S. 401, 43 L. Ed. 492. The Secretary and his predecessors in office, under the Reclamation Act, as shown, particularly by sections 1 and 3 of that act, must have done so primarily for the reclamation of arid and semiarid lands of the United States. Burley v. United States, 179 F. 1, 102 C. C. A. 429, 33 L. R. A. (N. S.) 807. Whether the public land holdings of the United States would, in the case of an interstate river, enable it to impose its policies in these matters upon states, was not determined in Wyoming v. Colorado, 42 S. Ct. 552, 259 U. S. 419-465, 66 L. Ed. 999. That there may be an implied reservation of water, growing out of its need for reclamation of arid lands, was recognized in Winters v. United States, 28 S. Ct. 207, 207 U. S. 564, 52 L. Ed. 340. Implied reservations have been upheld in other cases. United States v. Winans, 25 S. Ct. 662, 198 U. S. 371, 49 L. Ed. 1089; United States v. Rio Grande Irr. Co., 19 S. Ct. 770, 174 U. S. 690-703, 43 L. Ed. 1136; United States v. O'Brien (C. C.) 170 F. 508.

Section 8 of the Reclamation Act of June 17, 1902, 32 Stat. 390, Comp. St. § 4707, provides:

"Nothing in this act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any state or territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any state or of the federal government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, that the right to the use of water acquired under the provisions of this act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right."

If it be conceded that this section is applicable to a river such as the Snake, yet the word "control," in this section, is...

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4 cases
  • Pioneer Irr. Dist. v. American Ditch Ass'n
    • United States
    • Idaho Supreme Court
    • June 2, 1931
    ... ... 4. If ... canal, when diligently completed, could carry full ... Richards, 32 Idaho 1, 178 P. 81; Crane Falls Co. v ... Snake River Co., 24 Idaho 63, 133 P ... prejudice to any claim on the part of either side as to the ... doctrine of relation. It does not ... ( North Side Canal Co. v. Twin Falls Canal Co. , 12 ... ...
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    • October 26, 1939
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    • December 7, 1956
    ...73-1-10, Ibid. In spite of these modern similarities, and not unmindful of the contrary decision in North Side Canal Co., Limited v. Twin Falls Canal Co., D. C.Idaho S.D.1926, 12 F.2d 311, I am of the opinion that suits for the general determination of water rights are more in the nature of......
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    • United States
    • U.S. District Court — Eastern District of California
    • October 7, 1980
    ...is concurrent with that of the state courts...." The decision of the Southern District of Idaho in Northside Canal Co., Ltd. v. Twin Falls Canal Co., et al., 12 F.2d 311 (D.C.Idaho, 1926), deserves passing Plaintiff lodged a bill in equity against the defendant noted above and others, inclu......

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