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

• Decision Date: 07 September 1920
• Docket Number: 3476.
• Citation: 267 F. 382
• Parties: TWIN FALLS SALMON RIVER LAND & WATER CO. v. DAVIS et al.
• Court: U.S. Court of Appeals — Ninth Circuit

267 F. 382

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

No. 3476.

United States Court of Appeals, Ninth Circuit.

September 7, 1920

This is an appeal from a decree dismissing the complaint. Plaintiff appellant here, a corporation formed under the Carey Act, and its assignors, under contract with the state of Idaho constructed what is known as the Salmon River Carey Act project. The statutes of the United States which have to do with Carey Act projects are 28 Stat. 372, 422, c. 301, Sec. 4 (Comp. St. Sec. 4685); 29 Stat. 414, 434; 31 Stat. 1133 1188, c. 853, Sec. 3 (Comp. St. Sec. 4687); Resolution May 25, 1908, No. 28, 35 Stat. 577 (Comp. St. Sec. 4688); 35 Stat. 347; and the sections of the Revised Codes of Idaho which relate to the projects are 149, 150, 1558, 1613, up to and inclusive of section 1634. Features of the contract involved here and the construction of the irrigating system are more fully explained in Twin Falls Salmon River Land & Water Co. et al. v. Caldwell et al., 242 F. 177, 155 C.C.A. 17, and in Twin Falls Salmon River Land & Water Co. et al. v. Caldwell et al., 30 Idaho, 41, 190 P. 220. The defendants represent the state of Idaho in public matters pertaining to Carey Act projects. The commissioner of reclamation was substituted for the state land board by virtue of section 44, chapter 8, page 67 of the 1919 Session Laws of Idaho.

The complaint with much detail alleges that in 1911 the plaintiff substantially completed the project and fulfilled its contract of 1908, but that the defendants have unreasonably neglected to approve the work or to accept the system, and will not act in the premises, but have harassed plaintiff and delayed and are encouraging settlers to refuse payments under their contracts for water rights. The original contract contemplated irrigation of approximately 150,000 acres. Before the contract was entered into the state board caused an examination to be made by the state engineer of available water supply for the project. The state engineer reported a water supply that was adequate, and the land board approved this report. Plaintiff alleged that it relied upon the report of the state engineer when it made the construction contract, but that after bond had been given for the construction of the works, and work had been commenced, the board concluded that the water supply was much below the reported quantity, and plaintiff was directed to limit the sale of water rights in the system to about 75,000 acres. Plaintiff alleged that this operated to deprive plaintiff of the right to sell water for upwards of 75,000 acres, without provision being made for any increase in the price of water for the smaller acreage, or for reimbursing plaintiff for loss on account of the reduction of the project. It is also alleged that the project was further reduced until about the time of the trial, when there were outstanding water contracts with settlers for some 60,283 acres, and that the price as originally fixed for the entire acreage was $40 per acre, payable in installments extending over a period of 11 years, although appellant had expended in construction more than $3,500,000, relying upon the report of the state engineer and the approval thereof by the state board, and the provisions of the contract with the state board that the irrigable acreage was 150,000 acres. By supplemental complaint, filed in 1918, plaintiff alleges that defendants intend to apply for patent for about 35,000 acres of land included within the project, and to relinquish approximately 20,000 acres for which plaintiff has sold water rights, and upon which plaintiff claims liens to secure the payment of the purchase price of the lands. The prayer is for injunction against such relinquishment, or any act that could impair plaintiff's lien.

The answer admits the proposed relinquishment of about 25,000 acres of segregated lands, denies that water rights have been sold for all of the acreage proposed to be relinquished, denies any lien in favor of plaintiff, and alleges that the Commissioner of the General Land Office of the United States, in company with the state land board, examined the project for the purpose of arriving at a determination as to what action should be taken with reference to it, and that in October, 1917, the Commissioner submitted a communication to the land board, stating in effect that the then present available water supply was sufficient to irrigate 34,600 acres, which could be slightly increased by certain modifications, and advising the board to contract the project to approximately 35,000 acres. Defendants deny that the lands were all filed upon or paid for, deny reclamation, and plead that any action taken by defendants was in pursuance of the direction of the Commissioner of the General Land Office, that determination had not been made as to what particular lands should be relinquished, and that defendants were having an examination made and a report as to what lands should be retained, and for which water was available, and that before the adoption of any report the settlers, under the system, would have an opportunity to appear and show cause why the plaintiff's proposed plan should not be adopted, and that March 12, 1918, was fixed as the date for hearing.

Evidence, principally records, was offered by plaintiff. Defendants introduced no evidence, except the minutes of the meeting of the board of land commissioners held October 18, 1917, whereat a communication from the Commissioner of the General Land Office was read to the board and adopted, and a resolution was adopted by the board in conformity with the communication. The substance of the resolution was that the total irrigable acres in the project should not exceed 35,000 irrigable acres, and the state board should not apply to the United States government for patent to lands within the project, which added to any lands already patented, or state lands theretofore sold, or desert entries remaining within the project, which would make a total acreage receiving water from the system, and within the project, of over 35,000 acres. The resolution further provided that the state board should proceed and adjust the Twin Falls project and the Oakley project in accord with the recommendations of the Commissioner of the General Land Office and the resolution previously passed by the board.

Richards & Haga, of Boise, Idaho, for appellant.

Roy L. Black, Atty. Gen., of Idaho, and Dean Driscoll, First Asst. Atty. Gen., of Idaho, for appellees.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge (after stating the facts as above).

The appellant's argument has led it to state the following conclusions: (1) That the approval of the water supply by the state engineer and the state land board before the project was undertaken is binding upon the state, and that the defendants, appellees, cannot relinquish to the United States the lands in question after plaintiff has constructed the works for the reclamation in accordance with its contract with the state. (2) That the approval of the water supply and the feasibility of the project by the Secretary of the Interior at the time the lands were segregated for reclamation under the Carey Act cannot be affected or modified, after the works have been constructed and the lands entered and are occupied by settlers who have made improvements thereon. (3) That the appellant, having constructed the works as required by the contract, has a lien upon the lands, and that such lien is vested, not to be disturbed by the authorities of the state or of the United States.

Examination of chapter 301 (28 Stat. 422, Sec. 4), approved August 18, 1894, will aid in a better comprehension of the underlying purposes of the Carey Act. It was therein provided:

'That to aid the public land states in the reclamation of the desert lands therein, and the settlement, cultivation and sale thereof in small tracts to actual settlers, the Secretary of the Interior, with the approval of the President, be and hereby is authorized and empowered, upon proper application of the state, to contract and agree * * * with each of the states in which there may be situated desert lands, * * * binding the United States to donate, grant and patent to the state, free of cost for survey or price, such desert lands, not exceeding 1,000,000 acres of land in each state, as the state may cause to be irrigated, reclaimed (and) occupied, and not less than twenty acres of each one hundred and sixty acre tract cultivated by actual settlers, within ten years next after the passage of this act, as thoroughly as is required of citizens who may enter under the said desert land law.'

Further provision is that before any application is allowed, or agreement is executed, or segregation is made, the state must file a map of the lands proposed to be irrigated, showing the plan of the contemplated irrigation, the plan to be sufficient to 'thoroughly irrigate and reclaim said land and prepare it to raise ordinary agricultural crops. ' The Secretary of the Interior, in the event of his approval is directed to reserve the land from the date of filing the plans, and the state is authorized by the act of Congress to make contracts and cause the lands 'to be reclaimed, and to induce their settlement and cultivation in accordance with the subject of the provision of this section,' but the state is not authorized to lease any of the lands, or to use or dispose of them in any manner, except to secure their 'reclamation, cultivation and settlement.' The act provides also that, as fast as the state shall furnish satisfactory proof that any of the lands are irrigated, reclaimed, and occupied by actual settlers, patents shall issue to the state for such...