Twin Falls Salmon River Land & Water Co. v. Caldwell

• Decision Date: 09 March 1921
• Docket Number: 3502.
• Citation: 272 F. 356
• Parties: TWIN FALLS SALMON RIVER LAND & WATER CO. et al. v. CALDWELL et al.
• Court: U.S. Court of Appeals — Ninth Circuit

272 F. 356

TWIN FALLS SALMON RIVER LAND & WATER CO. et al. v. CALDWELL et al.

No. 3502.

United States Court of Appeals, Ninth Circuit.

March 9, 1921

Richards & Haga, S. H. Hays, and P. B. Carter, all of Boise, Idaho and A. N. Edwards, of St. Louis, Mo., for appellants.

James R. Bothwell, of Twin Falls, Idaho, Sullivan & Sullivan, of Boise, Idaho, and Turner K. Hackman, of Twin Falls, Idaho for appellees.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

MORROW Circuit Judge.

This controversy was before this court in Twin Falls Salmon River Land & Water Co. v. Caldwell, 242 F. 177, 155 C.C.A. 17. It relates to transactions connected with a project for the reclamation of certain desert lands in the state of Idaho under the so-called Carey Act (section 4 of the Act of August 18, 1894, 28 Stat. 422), as amended by the Act of June 11, 1896 (29 Stat. 434, (Comp. St. Sec. 4685)) and the Act of March 3, 1901 (31 Stat. 1188 (Comp. St. Sec 4687)), and the Act of the Legislature of the state of Idaho approved March 9, 1895 (Session Laws of 1895, p. 219), re-enacted in 1899 (Laws of 1899, p. 282) and re-enacted and codified in Revised Codes of 1908 (sections 1613-1634), and more recently compiled in Statutes of 1919 (sections 2996-3074).

The relation of the federal government to the state government in the reclamation of desert lands arises out of the fact that the federal government owns the lands, and Congress is invested by the Constitution with the power of disposing of the same, while the state has been given jurisdiction to provide for the appropriation and beneficial use of the waters of the state which necessarily includes a use for the reclamation of such lands. In Gibson v. Chouteau, 13 Wall. 92-99 (20 L.Ed. 534), the Supreme Court of the United States said:

'With respect to the public domain, the Constitution vests in Congress the power of disposition and of making all needful rules and regulations. That power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this property, or any part of it, and to designate the persons to whom the transfer shall be made.'

In U.S. v. Hanson, 167 F. 881-884, 93 C.C.A. 371, this court held that this right extended to the withdrawal of land by the Secretary of the Interior under the Irrigation Act of June 17, 1902 (32 Stat. 388 (Comp. St. Secs. 4700-4708)), which land prior to that act had been taken possession of and occupied by a settler and resided upon by him continuously with the intent to file a homestead entry thereon under the laws of the United States when the lands should be surveyed and opened to entry. This was a possessory right under section 3, Act of May 14, 1880 (21 Stat. 141), but a right which had to yield to the superior right of Congress to prescribe the times, the conditions, and the mode of transferring such property or any part of it and to designate the persons to whom the transfer should be made.

The absolute power of Congress over the public domain as thus defined requires that the court should carefully scrutinize the acts of Congress providing for the grant of desert lands to the states, that we may understand the conditions and limitations upon which the grant was made. The first observation to be made with respect to the Carey Act is that its purpose was to aid the public land states in the reclamation of the desert lands in such states. Without such reclamation such lands are obviously unfit for settlement, cultivation, or sale. The states having jurisdiction to provide for the appropriation and beneficial use of the waters of the state for that purpose are invited by the act to co-operate with the United States in such a plan, and to that end such states are authorized to apply to the Secretary of the Interior for such desert lands, not exceeding 1,000,000 acres in each state, as the state may cause to be irrigated, reclaimed, and occupied. Upon such a proper application the Secretary of the Interior, with the approval of the President, is authorized and empowered to contract and agree from time to time with each of the states to bind the United States to convey, grant, and patent to the state free of cost for survey and price for such desert lands. But before the application of any state is allowed or any contract or agreement is executed or any segregation of any of the lands from the public domain is ordered by the Secretary of the Interior, the state shall file a map of the said lands proposed to be irrigated and shall exhibit a plan showing the mode of the contemplated irrigation and which plan shall be sufficient to thoroughly irrigate and reclaim said land and prepare it to raise ordinary agricultural crops, and shall also show the source of the water to be used for irrigation and reclamation, and the Secretary of the Interior is authorized to make necessary regulations for the reservation of the lands applied for by the states to date from the date of the filing of the map and plan of irrigation, but such reservation shall be of no force whatever if such map and plan of irrigation shall not be approved. It is further provided that any state contracting under the act is authorized to make all necessary contracts to cause the said lands to be reclaimed and to induce their settlement and cultivation in accordance with and subject to the provisions of the act. But it is specifically provided that the state shall not be authorized to lease any of said lands or to use or dispose of the same in any way whatever, except to secure their reclamation, cultivation, and settlement. It is further provided that, as fast as any state may furnish satisfactory proof according to such rules and regulations as may be prescribed by the Secretary of the Interior that any of said lands are irrigated, reclaimed, and occupied by actual settlers, patent shall be issued to the state or its assigns for the said lands so reclaimed and settled.

The Carey Act was amended by the Act of June 11, 1896 (29 Stat. 434). The amendment authorized the state to create a lien upon the lands granted for the actual cost and necessary expenses of reclamation. The amendment provides that a lien or liens is authorized to be created by the state to which such lands are granted and by no other authority whatever, and when created shall be valid on and against the separate legal subdivisions of land reclaimed for the actual and necessary expenses of reclamation and reasonable interest thereon from the date of reclamation until disposed of to actual settlers, and when an ample supply of water is actually furnished in a substantial ditch or canal or by artesian wells or reservoirs to reclaim a particular tract or tracts of such lands, then patent shall issue for the same to such state without regard to settlement or cultivation, but it is provided that in no event, and in no contingency and under no circumstances, shall the United States be in any manner directly or indirectly liable for any amount of any such lien or liability in whole or in part.

The Legislature of the State of Idaho by an act dated March 9, 1895, provided in section 1 (Session Laws of 1895, p. 219; section 1613, Rev. Codes; section 2996, Compiled Stats.) for the acceptance of the conditions of the Carey Act, together with all the grants of land to the state under the provisions of the act, and for the selection, management, and disposal of such lands, by a state board of land commissioners provided for by the act. By section 20 of the act (section 1629, Rev. Codes; section 3018, Comp. Stats.), it was provided that the water rights to all lands acquired under the provisions of the act should attach and become appurtenant to the land as soon as title passed from the United States to the state.

The facts in the case are stated by the District Court in Caldwell v. Twin Falls Salmon River Land & Water Co., 225 F. 588, and by this court on the former appeal in Twin Falls Salmon River Land & Water Co. v. Caldwell, 242 F. 177, 155 C.C.A. 17. It will not be necessary to restate more than a brief summary of such facts.

The agreements between the parties are attached to the amended complaint.

The contract between the state of Idaho, through its state board of land commissioners, with the Twin Falls Salmon River Land & Water Company, the appellant herein, and hereafter referred to as the 'Construction Company,' entered into on April 30, 1908, contemplated the construction of an irrigation system for the irrigation of approximately 150,000 acres of desert land. This estimate was based upon a report of the state engineer, which stated, among other things, that-- 'The water supply will be taken from the Salmon river, the proposers holding a permit from this office to divert 1,500 cubic feet per second of time from that stream, together with all storm and flood waters. The Salmon river above the point of intended diversion has a drainage area of about 1,750 square miles, a good portion of which lies in the mountains where very heavy falls of snow occur each year. The waters available for the enterprise are unquestionably adequate for the purpose in hand, and the right of the proposers is most excellent, legally considered; all adverse priorities being so small in the aggregate as to be negligible.'

In a public notice issued by the Construction Company it was announced that 80,000 acres of Carey Act lands were opened for entry under the canal system on June 1, 1908; that 70,000 acres of this land were filed on during the month of June. The notice announced:

That 'this tract of land affords better inducement to the home seeker than any other tract of land in the Northwest. ' That 'the water supply for the Twin Falls Salmon River project is...