Ramshorn Ditch Co. v. United States

• Decision Date: 15 November 1920
• Docket Number: 5513.
• Citation: 269 F. 80
• Parties: RAMSHORN DITCH CO. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

269 F. 80

RAMSHORN DITCH CO. et al. v. UNITED STATES.

No. 5513.

United States Court of Appeals, Eighth Circuit.

November 15, 1920

[Copyrighted Material Omitted]

Thomas M. Morrow, of Scottsbluff, Nev. (Clarence A. Davis, Atty Gen. of Nebraska, and William Morrow, of Scottsbluff, Neb on the brief), for appellants.

Ethelbert Ward, Sp. Asst. Atty. Gen., of Denver, Colo., and Henry A. Cox, District Counsel for United States Reclamation Service, of Mitchell, Neb. (Thomas S. Allen, U.S. Atty., of Lincoln, Neb., on the brief), for the United States.

Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District Judge.

CARLAND Circuit Judge.

Appellee brought this action against appellants for the purpose of restraining them from in any way interfering with the waters of Sheep creek, Neb., or the controlling works used by it in diverting said waters. The case was heard on pleadings and proofs, and a decree entered granting the relief prayed for. The appellants, who are the Ramshorn Ditch Company and officers of the state of Nebraska having to do with the distribution of water for irrigation between different claimants, appealed.

The question for decision may be stated as follows: Has the Ramshorn Ditch Company the right to divert and apply for irrigation purposes 45 4/7 second feet of water, or any part thereof, flowing in the creek above mentioned or has appellee the right to economically save and to continue to economically use said water for beneficial irrigation? The material facts upon which the decision of the above question depends are largely undisputed. The questions involved may be discussed under two heads, viz.: (1) Rights acquired under original appropriations. (2) Rights acquired under the seepage law of Nebraska. The source of the water is the Interstate Canal, which carries water previously impounded by appellee in the Pathfinder Reservoir, located in the state of Wyoming.

Appellee claims that this water thus brought into the state of Nebraska in connection with this North Platte irrigation project, and which by seepage, drainage, and waste has developed into a flowing stream in Sheep creek, it has the right to economically save and continue to economically use for beneficial irrigation. Appellants claim that this water now flowing in Sheep creek, conceding its source to be in the Interstate Canal, is a part of the Platte river, from which it was originally taken, and subject to appropriation for irrigation purposes the same as the water of a natural stream, or if it is seepage water, and not public water of the state of Nebraska, that under the law and the evidence its rights as a prior appropriator of the water in question is superior to those of appellee. A very full and clear statement of the facts and the legislation of Congress and of the state of Nebraska was made by the learned trial judge and will be found in United States v. Ramshorn Ditch Co. et al. (D.C.) 254 F. 842. It would serve no useful purpose to again restate those facts, as they are fully sustained by the evidence and are quite voluminous.

The source of the water in controversy being conceded, it follows that it is a portion of the 1,600 second feet of water for which appellee has a valid appropriation, and which it is entitled to save and use for the beneficial irrigation of lands under the Interstate Canal, independent of the legislation of Nebraska in relation to seepage waters. Griffiths v. Cole (D.C.) 264 F. 369; McKelvey v. North Sterling Irr. Dist., 179 P. 872; Hagerman Irr. Co. v. East Grand Plains Drainage Dist., 25 N.M. 649, 187 P. 555; Lambeye v. Garcia, 18 Ariz. 178, 157 P. 977.

If appellee permits said water to flow unused back to the North Platte river, it is to be considered a part of the water of said river, as though never diverted, and inures to the benefit of the appropriators on the river in the order of their appropriation, when it becomes mingled with the water of the natural stream. Section 3427, Rev. Stat. Neb. 1913; Water Supply & Storage Co. v. Larimer & Weld Reservoir Co., 25 Colo. 87, 53 P. 386; Burkhart v. Meiburg, 37 Colo. 187, 86 P. 98, 6 L.R.A. (N.S.) 1104, 119 Am.St.Rep. 279; Lambeye v. Garcia, supra; Hill v. American Land & Live Stock Co., 82 Or. 202, 161 P. 403; Comstock v. Ramsay, 55 Colo. 244, 133 P. 1107; Durkee Ditch Co. v. Means, 63 Colo. 6, 164 P. 503; Trowell L. & I. Co. v. Bijou Irr. District, 65 Colo. 202, 176 P. 292. It may be stated here that there is no evidence in the record that any appropriator, including the Ramshorn Ditch Company, does not receive his full appropriation from the Platte river, notwithstanding the use by appellee of the water of Sheep creek.

Seepage and waste water may be said to have been abandoned by the original appropriator when it is returned or allowed to return to its natural channel, with no intention on the part of the appropriator of recapturing it. To constitute abandonment, however, there must be an intent to abandon (White v. Nuckolls, 49 Colo. 170, 112 P. 329; Matter of Daly, 123 A.D. 709, 108 N.Y.Supp. 635 (affirmed in 192 N.Y. 571, 85 N.E. 1108); Hough v. Porter, 51 Or. 318, 95 P. 732, 98 P. 1083, 102 P. 728; Edgmont Imp. Co. v. N.S. Tubbs Sheep Co., 22 S.D. 142, 115 N.W. 1130; Lindblom v. Water Co., 178 Cal. 450, 173 P. 994; Water Co. v. Kellogg, 31 Idaho, 574, 174 P. 602), the existence or nonexistence of which is a question of fact to be determined according to the evidence presented in each particular case, and one whose rights depend on an alleged abandonment must assume the burden of proving such abandonment. 40 Cyc. 727, 728, and cases cited.

The appropriator who has abandoned his rights to water may at any time resume the possession and exercise of them, if no new rights have intervened. Platte Valley Irr. Co. v. Central Trust Co., 32 Colo. 102, 75 P. 391; Hall v. Lincoln, 10 Colo.App. 360, 50 P. 1047; Beaver Brook Res., etc., Co. v. St. Vrain Res., etc., Co., 6 Colo.App. 130, 40 P. 1066. In this connection it may be stated that appellee, at the cost to it of $1,450, diverted the water from Sheep creek into the Farmers' or Tri-State ditch in June, 1914, and continued to do so during each irrigation season thereafter up to July 21, 1917. The application for an appropriation of those same waters by the Ramshorn Ditch Company was filed on September 13, 1916, and granted September 22, 1916. In this application the water which the ditch company desired to appropriate was described as 'seepage water arising in the Sheep creek basin'; said application having been made presumably under the provisions of section 3426, Rev. Stat. Neb. 1913, relating to seepage water. The ditch company had an old appropriation from the North Platte river for 45 5/7 second feet dated March 20, 1893. The permit granted simply transferred the headgate of this old appropriation, which was on the North Platte river, to Sheep creek, on the ditch constructed by appellee, and was given priority as of the date of the granting of the original appropriation, although the evidence shows that there was no water running in Sheep creek at the point where the headgate of the new appropriation was located until years after the old appropriation was granted. This new appropriation was granted subject to the condition that--

'The prior rights of all persons who, by compliance with the laws of the state of Nebraska, have acquired a right to the use of the waters of this stream, must not be interfered with by this appropriation. The amount of the appropriation shall not exceed 45 4/7 cubic feet per second of time. * * * This appropriation shall be supplementary to and part of the original appropriation covered by docket No. 945, Ramshorn Ditch Company, and shall take the same priority as docket No. 945.'

We are of the opinion that, conceding for the present that the appropriation granted to the Ramshorn Ditch Company September 22, 1916, had any validity, it was not within the power of the board of irrigation, highways, and drainage of Nebraska to grant a priority in connection therewith dating back 23 years before the company had sought to use any of the water of Sheep creek for irrigation and long prior to the time that there was any water flowing in said creek.

It must be conceded, of course, that the water which the evidence shows had been diverted and controlled by appellee by the means of ditches in Sheep Creek valley, and which was allowed to flow in the several drainage ditches back into the Platte river unused, was abandoned; but the seepage water which was still flowing and continued to flow into Sheep creek was subject to be recaptured, and was recaptured by appellee by the construction of its controlling works, by which the water was turned into the Farmers' or Tri-State ditch, in June, 1914, nearly three years before the ditch company attempted to actually take any of the water from Sheep creek, and over two years before September 22, 1916.

Counsel for appellants claim that seepage water is abandoned as soon as it leaves the canal or ditch wherein the original appropriated water is running; but that rule could not prevail in the present case, because it as a year or more before the indication of seepage from the Interstate Canal began to show itself in the Sheep Creek and Dry Sheep Creek valleys. Certainly the appropriator must have a reasonable time in which to save and use water that by seepage and waste has escaped from his canal or ditch. We are therefore of the opinion that, as against the ditch company, appellee had the right in June, 1914, to recapture the seepage water, which had, it is admitted, come from the Interstate Canal, before it reached the Platte river, and that, having done so, its right as an original appropriator of the waters in the Interstate...