Trade Dollar Consol. Min. Co. v. Fraser

• Decision Date: 08 October 1906
• Docket Number: 1,305.
• Citation: 148 F. 585
• Parties: TRADE DOLLAR CONSOL. MINING CO. v. FRASER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

148 F. 585

TRADE DOLLAR CONSOL. MINING CO. v. FRASER et al.

No. 1,305.

United States Court of Appeals, Ninth Circuit.

October 8, 1906

Johnson & Johnson and N. M. Ruick, for appellant.

Alfred A. Fraser, for appellees.

Before GILBERT and ROSS, Circuit Judges, and DE HAVEN, District Judge.

ROSS Circuit Judge.

The case shows that one Joseph H. Hutchinson, the predecessor in interest of the appellant, by notice posted and recorded in January, 1900, claimed the right to the use of 10,000 cubic feet per second of the waters of Snake river, to be diverted therefrom at a point about 10 miles up the river from the town of Guffey, Owyhee county, Idaho, particularly identified by a large lava rock island near the center of the river, and which point is called Swan Falls. The purpose for which the appropriation was made was stated in the notice to be 'power for motive, manufacturing, mechanical, electric light, electric power, and other useful and beneficial purposes, and for irrigation by means of pumping and otherwise. ' The notice further stated that the water was to be diverted by means of a dam, or else two canals or conduits, said dam to be constructed across the river at Swan Falls, particularly describing the dam site, and further stating that the water flowing at that point was 'to be used for power for motive, manufacturing, mechanical electric light, electric power and for pumping water for irrigation purposes in the counties of Ada, Canyon, Owyhee Elmore, Lincoln, Cassia and other places in Idaho'; that plans and specifications of the dam site would be filed with the state engineer of Idaho as required by law, and claiming five years in which to complete the dam or canals. In May following Hutchinson posted and caused to be recorded in the office of the recorder of the county another similar notice of the appropriation of the same waters for the same purposes, to be diverted at the same place, and that such diversion was to be by means of a dam, plans and specifications of which would be filed with the state engineer of Idaho, and designating the places of intended use, and further expressly stating that nothing therein was intended as a waiver of any rights claimed in his previous notice of January.

The appellant, a corporation organized and existing under and pursuant to the laws of the state of Kentucky, having acquired Hutchinson's rights, commenced and completed the construction of a dam across the river at the point indicated in the notice, plans for which were approved by the state engineer as required by a statute of the state, thereby creating a head of 19 feet of water, and installing a costly power plant not only of great present capacity but one intended to be, and susceptible of being, largely increased. While at the time of the commencement of this suit, and at the time of its trial in the court below, the appellant was only making use of 2,150 cubic feet per second of the waters of the river in the operation of its plant and the running of the four water wheels of like capacity, the operation of which would require practically all of the water claimed. The evidence also shows that the cost of the works already completed exceeds $350,000, and that in the making of that large expenditure the appellant not only had in view additions to the equipment from time to time as the demand for power and the other purposes stated should arise, in the development of the region in which the plant is located, but had been actively engaged in the pursuit of its intention to enlarge the plant and apply all of the water claimed to a beneficial use.

A statute of the state of Idaho, where the property in question is situated, approved March 11, 1903 (Sess. Laws 1903, pp 250-252), makes provision for just such a case. Sections 38 and 41 of that statute are as follows:

'Sec. 38. In allotting the waters of any stream by the district court according to the rights and priorities of those using such waters, such allotment shall be made to the use to which such water is beneficially applied, and when such water is used for irrigation the right confirmed by such decree or allotment shall be appurtenant to and shall become a part of the land which is irrigated by such water. Such right shall pass with the conveyance of such land and such decree shall prescribe the land to which such water shall become so appurtenant; and the amount of water so allotted shall never be in excess of the amount used for beneficial purposes for which such right is claimed; provided, that in the case of works capable of diverting more water than is applied to a beneficial purpose at the time the rights of the person or persons owning or using such works are adjudicated by the court, the right only to the water beneficially applied at the time of making such allotment shall be confirmed by the court, and the court shall ascertain the amount of water which can be diverted through such works in excess of such quantity beneficially applied, and shall set a time when such an amount shall be applied to the beneficial purposes for which it is intended, which time shall not exceed four years from the date of the decree issued by such court under such adjudication, and any person using any of such water which was not beneficially applied at the time of such adjudication shall, before the expiration of the time set for such beneficial application, make proof of such beneficial use in the manner provided in section seven (7) of this act, and such right, when confirmed in the manner provided in this act, shall relate to the priority established by such court, and if such application of any of such water shall be made subsequent to such date then the priority of the right to the use thereof shall be determined in the manner provided in section eight (8) of this act.'

'Sec. 41. All rights to divert and use the waters of this state for beneficial purposes shall hereafter be acquired and confirmed under the provisions of this act; and after the passage of this act all of the waters of this state shall be controlled and administered in the manner herein provided, and all acts or parts of which may be in conflict with this act are hereby repealed.'

The case further shows that at the low-water stage of the river, which extends from August to November of each year, the volume of water flowing in the river at Swan Falls is only about 6,500 cubic feet per second. On the west side of the river is Owyhee county, and on the east side is Ada county, of the state of Idaho. After the building of appellant's dam and the consequent raising and backing of its waters until a head of 19 feet was thereby obtained, the defendants and one F. B. Whitin filed in the office of the engineer of the state, pursuant to the provisions of a statute of the state, two applications for permission to appropriate certain waters of the river for power purposes--one for a permit to appropriate 2,000 cubic feet per second to be diverted from the river at a point on the west bank thereof in Owyhee county, about 500 feet above the west end of the appellant's dam, and to be conducted to the point of intended use on the same bank of the river about 500 feet below the west end of the dam, by means of a ditch or canal 65 feet in width at the bottom, 81 feet in width at the water line, and with a depth of water of 8 feet; the other for a permit to appropriate 2,000 cubic feet per second to be diverted from the river on the other bank thereof in Ada county, about 400 feet above the east end of the appellant's dam, and to be conducted to the point of intended use on the same bank of the river about 500 feet below the east end of the dam, by means of a ditch or canal of like dimensions, and with like depth of water. Whitin having conveyed all of his interest in the applications and permits to the defendant Fraser, and the state engineer having returned both applications to the defendants for the purpose of correction, and having required a more definite and certain place of diversion and use of the waters and a survey of the proposed ditches or canals to be used in connection therewith, the defendants, on the 29th of November, 1904, returned to the state engineer their corrected applications, each accompanied by a plan and map of the proposed works for the diversion of the waters, on which day the state engineer approved each application and granted them a permit to appropriate the waters applied for, and to construct the proposed works, subject to the limitations and conditions that one-fifth of the work therein specified should be completed on or before May 29, 1907, that the whole of such work be completed on or before November 29, 1909, and that the time for the proof of the beneficial use of such waters extend to November 29, 1913. Those permits, with the maps and plans accompanying the same, were recorded in the records in the office of the state engineer. We assume that that officer was authorized to grant the permits to the defendants if they did not interfere with any vested right of the appellant. If they did so interfere, then, manifestly, to the extent of such interference they were and are invalid and of no effect.

Since the applications of the defendants and accompanying plans and maps show that the point of diversion of the waters applied for are but a few hundred feet below it, and as the defendants' declared purpose of use is that of power nothing can be plainer than that their sole object in so fixing the points of intended diversion was and is to avail themselves of the power created by the appellant's dam. If such use of the waters of the river would be without injury or damage to the appellant, perhaps it could not justly complain, but the record before us leaves no room to doubt...