Union Land & Stock Co. v. United States

• Decision Date: 05 May 1919
• Docket Number: 3154.
• Citation: 257 F. 635
• Parties: UNION LAND & STOCK CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

257 F. 635

UNION LAND & STOCK CO. v. UNITED STATES.

No. 3154.

United States Court of Appeals, Ninth Circuit.

May 5, 1919

R. L Shinn and A. L. Hart, both of Sacramento, Cal., for appellant.

Annette Abbott Adams, U.S. Atty., and Frank M. Silva, Asst. U.S Atty., both of San Francisco, Cal. (H. P. Dechant, of San Francisco, Cal., of counsel), for the United States.

The appellee brought a suit in equity to declare forfeited a right of way and easement for the storage of water. It was alleged in the bill that on February 23, 1895, the appellant under the provisions of an act of Congress of March 3, 1891 (26 Stat. 1101, c. 561), filed in the Land Office at Susanville, Cal., its application for an easement for a reservoir for irrigation purposes, describing the same, in the map which was attached to the application, as reservoir No. 1, or Lake Luckett, and which covered and affected certain described portions of the public lands of the United States, of which the appellee then and for a long time prior thereto had been the owner in fee simple. The bill alleged that on November 18, 1895, the application was duly approved by the Secretary of the Interior; that no part of said reservoir or section thereof has been constructed or completed by the appellant since the approval of said right of way by the Secretary of the Interior. The prayer of the bill was that the easement be declared forfeited and canceled, and that the appellant and all claiming under it be forever estopped from asserting any right, title, or interest in or to said lands, and that all title, rights, etc., to the property described in the application be reinvested in the appellee, and that the grant be declared null and void.

The appellant moved to dismiss the bill for want of equity. The motion was overruled, and the appellant answered, denying that the appellee was the owner of the lands covered by the easement, and alleging that the appellant was the owner thereof, and denying that the reservoir had not been constructed or completed, and alleging the construction and use of the reservoir for the storage of water and irrigation. It was stipulated in open court that in the years 1894 and 1895 the appellant went on the ground at the point A, indicated on the map attached to the bill of complaint, and after November, 1895, constructed a dam which at that time was 35 feet high; that said dam remained at that height until the winter of 1897-98, when a portion of it was washed away; that in the fall of 1898 the dam was reconstructed to a height of 26 feet, but settled down to a height, at its lowest, of 23 feet, at which point it now remains; that said dam has 300 feet of 30-inch steel pipe through the bottom, with a patent gate in shape to store and withdraw water. The stipulation further recites:

'It was also shown by competent evidence that the dam as constructed would not store water over more than 100 acres of the land in said reservoir, and that it did not have a capacity of more than 600 acre feet of water; that the dam was in a bad state of repair, but that it was strong enough to store water in the reservoir to a depth of 20 feet; that the base was not of sufficient width to build the dam to a height of 50 feet; that the said reservoir is one of a series of reservoirs, the others being known as dams Nos. 2 and 3, and that they are all used in connection with each other; that reservoir No. 1, being the one in suit, has been mainly used for the irrigation of what is known as the 'Moulton Ranch,' under a verbal agreement with the owners of said ranch; that the defendant company had been properly notified, and cited to relinquish said reservoir site or show cause why judicial proceedings should not be instituted to cancel the grant, for the reason that the dam had not been built in accordance with the application, as shown on Exhibit A, attached to the complaint; that the defendant had had 20 years in which to complete said dam in accordance with said plans; that said reservoir has been used to store water each year since its construction, with the exception of dry years, when there was no water to store.'

Before GILBERT, MORROW, and HUNT, Circuit Judges.

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

The appellant contends that the bill should have been dismissed for want of equity, for the reason that it is brought to declare a forfeiture, and cites Horsburg v. Baker, 1 Pet. 232, 236, 7 L.Ed. 125, and Marshall v. Vicksburg, 15 Wall. 146, 149, 21 L.Ed. 121. In the latter case it was said:

'Equity never, under any circumstances, lends its aid to enforce a forfeiture or penalty, or anything in the nature of either.'

But the rule thus stated has not always been adhered to in the absolute form in which it is expressed. Thus in Henderson v. Carbondale Coal & Coke Co., 140 U.S. 25, 11 Sup.Ct. 691, 35 L.Ed. 332, Mr. Justice Brewer said:

'Forfeitures are never favored. Equity always leans against them, and only decrees in their favor when there is full, clear, and strict proof of a legal right thereto.'

The reason for the rule is that forfeitures are regarded as harsh and oppressive, and the rule has been held not to apply to cases in which forfeiture is imposed by statute and where public interests are to be subserved thereby. In Farnsworth v. Minn. & Pac. R.R. Co., 92 U.S. 49, 68 (23 L.Ed. 530), it was said:

'But there can be no leaning of the court against a forfeiture which is intended to secure the construction of a work, in which the public is interested, where compensation cannot be made for the default of the party, nor where the forfeiture is imposed by positive law.'

It is to be added that ...