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

• Decision Date: 07 May 1917
• Docket Number: 2725.
• Citation: 242 F. 177
• Parties: TWIN FALLS SALMON RIVER LAND & WATER CO. et al. v. CALDWELL et al. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

242 F. 177

TWIN FALLS SALMON RIVER LAND & WATER CO. et al. v. CALDWELL et al. ^[1]

No. 2725.

United States Court of Appeals, Ninth Circuit.

May 7, 1917

This case grows out of the establishment and construction of an irrigation system known as the Salmon River Project under and in pursuance of an act of Congress approved August 18, 1894 (28 St.Lg. 372, 422), and amendments thereto, known as the Carey Act, and of certain legislation of the state of Idaho.

The purpose of the act of Congress is therein expressly declared to be to aid the public land states in the reclamation of the desert lands situate therein, and in the settlement cultivation, and sale thereof in small tracts to actual settlers. To carry into effect that object, the act provides that the Secretary of the Interior, with the approval of the President, is authorized upon proper application of such public land states to enter into a contract with each of them in which there may be such desert lands as are described by Congress in certain designated previous acts, binding the United States to donate, grant, and patent to the state, free of cost of survey or price, such desert lands, not exceeding 1,000,000 acres, as the state would cause to be irrigated reclaimed, occupied, and not less than 20 acres of each 160-acre tract cultivated by actual settlers, within 10 years next after the passage of the act, as thoroughly as required of citizens who may enter under a certain preceding act of Congress approved March 3, 1877, and the act amendatory thereof approved March 3, 1891; provided, however, that before the application of any such state is allowed, or any contract is executed, or any segregation of any of the desert lands from the public domain is ordered by the Secretary of the Interior, such state shall file a map of the land proposed to be irrigated, together with a plan showing the mode of the contemplated irrigation, which plan shall be sufficient to thoroughly irrigate and reclaim said desert land and prepare it to raise ordinary agricultural crops, and shall also show the source of the water to be used for its irrigation and reclamation, the Secretary of the Interior being by the act empowered to make necessary regulations for the reservation of the land applied for by the state, to date from the date of the filing of the map and plan of irrigation, such reservation, however, to be of no force in the event such map and plan of irrigation be not approved as required by the act. The act further empowers any state entering into a contract with the United States through the Secretary of the Interior, to make all necessary contracts to cause the said desert lands to be reclaimed, and to induce their settlement and cultivation in accordance with and subject to the provisions of the act of Congress; the state however, being prohibited from leasing any of such lands or using or disposing of them in any way except to secure their reclamation, cultivation, and settlement. And the act of Congress further provides that, as fast as any such public land state shall furnish satisfactory proof, according to such rules and regulations as may be prescribed by the Secretary of the Interior, that any of said desert lands are cultivated, reclaimed, and irrigated by actual settlers, patents shall be issued to the state or its assigns therefor, provided that the said public land states shall not sell or dispose of more than 160 acres of such desert lands to any one person, and that any surplus of money derived by any such state from the sale of such lands in excess of the cost of their reclamation shall be held as a trust fund and be applied to the reclamation of other desert lands in such state.

By an act approved June 11, 1896 (29 St.Lg. 413, 434), Congress further provided that under any law theretofore or thereafter enacted by any state, providing for the reclamation of arid lands in pursuance and acceptance of the terms of the grant made by the above-mentioned act of August 18, 1894, 'a lien or liens is hereby 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 cost 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 patents shall issue for the same to such state without regard to settlement or cultivation: Provided, that in no event, 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.'

By section 1613 et seq. of the Revised Codes of Idaho, that state accepted the grant so made by Congress, subject to all of its terms and conditions, and provided that the selection, management, and disposal of such desert lands situated in Idaho should be vested in its state board of land commissioners, and further provided that any person, company of persons, association, or incorporated company, constructing, having constructed, or desiring to construct ditches, canals, or other irrigation works to reclaim lands under the provisions of the Idaho statute, should file with the board of land commissioners a request for the selection on behalf of the state by the board of the land to be reclaimed, designating it by local subdivisions, which request should be accompanied by a proposal to construct the ditch, canal, or other irrigation works necessary for the complete reclamation of the land asked to be selected, and which proposal should be prepared in accordance with the rules of the board and in accordance with the regulations of the Department of the Interior, and should be accompanied by the certificate of the state engineer of Idaho that application for permit to appropriate water has been filed in his office, together with the state engineer's report thereon, and shall state the source of water supply, the location and dimensions of the proposed works, the estimated cost thereof, the price and terms per acre at which perpetual water rights will be sold to settlers on the land to be reclaimed; such perpetual rights to embrace a proportionate interest in the canal or other irrigation works, together with all the rights and franchises attached thereto.

Further provisions of the state act provide for the disposition of the proceeds of sale, and section 1628 is as follows:

'Within one year after any person, company of persons, association or incorporated company, authorized to construct irrigation works under the provisions of this chapter, shall have notified the settlers under such works that they are prepared to furnish water under the terms of their contract with the state, the said settler shall cultivate and reclaim not less than one-sixteenth part of the land filed upon, and within two years after the said notice the settler shall have actually irrigated and cultivated not less than one-eighth of the land filed upon, and within three years from the date of said notice the settler shall appear before the register of the state board of land commissioners, a judge or clerk of any court of record within the state, or commissioners to be designated by the board, within the state, and make final proof of reclamation, settlement, and occupation, which proof shall embrace evidence that he is the owner of shares in the works which entitle him to a water right for his entire tract of land sufficient in volume for the complete irrigation and reclamation thereof; that he has been an actual settler thereon and has cultivated and irrigated not less than one-eighth part of said tract; and such further proof, if any, as may be required by the regulations of the Department of the Interior and the board. The officer taking this proof shall be entitled to receive a fee of two dollars, which fee shall be paid by the settler and shall be in addition to the price paid to the state for the land: Provided, that when the register of the board takes final proof, all fees received by him shall be turned into the state treasury. The commissioners appointed by the board are hereby authorized to administer oaths. All proofs so received shall be submitted by the register to the board, and shall be accompanied by the final payment for said land, and upon approval of the same by the board the settler shall be entitled to his patent. If the land shall not be embraced in any patent theretofore issued to the state by the United States, the proofs shall be forwarded to the Secretary of the Interior, with the request that a patent to said lands be issued to the state. When the works designed for the irrigation of lands under the provisions of this chapter shall be so far completed as to actually furnish an ample supply of water in a substantial ditch or canal to reclaim any particular tract or tracts of such lands, the state of Idaho shall, through the state board of land commissioners, make proof of such fact, and shall apply for a patent to such lands in the manner provided in the regulations of the Department of the Interior.'

The next section (1629) provides that, upon the issuance of a patent to any lands by the United States to the state, notice shall be forwarded to the settler upon such land, whereupon it shall be the duty of the board of land commissioners under the signature of its president, attested by its register, to issue a patent to said land from the state to the settler, and the state statute further provides that the water rights...