United States v. Big Bend Transit Co., 53.

• Citation: 42 F. Supp. 459
• Decision Date: 31 December 1941
• Docket Number: No. 53.,53.
• Parties: UNITED STATES v. BIG BEND TRANSIT CO. et al.
• Court: United States District Courts. 9th Circuit. Eastern District of Washington

42 F. Supp. 459

UNITED STATES v. BIG BEND TRANSIT CO. et al.

No. 53.

District Court, E. D. Washington, N. D.

December 31, 1941.

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COPYRIGHT MATERIAL OMITTED

Lyle Keith, U. S. Dist. Atty., and Hart Snyder, both of Spokane, Wash., and B. E. Stoutemyer, of Portland, Or., for plaintiff.

Post, Russell, Davis & Paine and H. E. T. Herman, all of Spokane, Wash., for defendant.

SCHWELLENBACH, District Judge.

In this action plaintiff seeks to condemn certain lands necessarily flooded by the construction of Grand Coulee Dam. The declaration of taking and the petition were filed December 9, 1939. The lands involved are on the Spokane River a short distance above the confluence of the Spokane with the Columbia River. The declaration of taking divided the property into two tracts. Tract No. 1, consisting of 1971.236 acres, is described as an estate in fee simple absolute. For it there is deposited $32,073.80. Tract No. 2 is described as a flowage easement including all right, title and interest of the defendants in the tract. It is alleged to consist of 721.72 acres for which a deposit of $10,159 was made. Tract No. 1 consists of land on the south side of the river practically all of which was acquired from private ownership. Tract No. 2 consists of lands on the north side of the river and whatever rights to the use of the River for the purpose of the construction of a power dam may have been acquired by defendant from the United States. Judgment on the declaration of taking was entered the day it was filed. Thereafter, and on August 5, 1940, an amended petition was filed in which it was alleged as follows: "That the defendant Big Bend Transit Company, a corporation, claims some right, title or interest in said Tract No. 2, the exact nature of which is to the petitioner unknown, but the petitioner alleges that the said claim of the said defendant is without right and that the said defendant has no right, title or interest therein and that said defendant never had any right, title or interest therein at any of the times referred to in the amended petition in this action. That Stevens County, Washington, claims a lien on said Tract No. 2 for taxes for the year 1940." Plaintiff now contends that defendant has no interest in any lands on the north side of the River, that it acquired no title thereto, and that it acquired no right to the use of the River for the construction of a power dam and that it is not entitled to recover any part of the $10,159.00 which was deposited.

The issue on this phase of the hearing in the case is whether, upon the impaneling of a jury to determine the amount of damages, the Court will submit the question of the value of the property for power site purposes or will limit the jury's consideration to that of the value of the land on the south side of the River and limit the consideration as to the value of such land to its use for agricultural purposes.

By stipulation, the parties agreed that since this question is a mixed question of fact and law and one on which the Court and not the Jury should pass, the testimony should be submitted to the Court and that issue decided prior to the calling of the jury. In hearing this phase of the case, I have assumed the Spokane River to be navigable.

At the outset of the trial, defendant moved to strike plaintiff's amended petition on the ground that a judgment having been entered on the declaration of taking and the term of court having expired, that judgment could not be set aside by the simple procedure of filing an amended petition. The disposition I am making of this phase of the case makes unnecessary any decision on this motion.

However, I am firmly convinced that the procedure causing judgments on declarations of taking to be entered by the Court is not only not necessary but it is not the best practice. As I construe the Declaration of Taking Statute, Title 40, Sec. 258a, U.S.C.A., the only thing the Court needs to do is to fix the date on which and the terms on which possession should pass to the Government and to make orders in respect to encumbrances, liens, rents, etc., charges. See Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170; Old Dominion Land Co. v. United States, 4 Cir., 296 F. 20; Id., 269 U.S. 55, 46 S.Ct. 39, 70 L.Ed. 162; United States v. Threlkeld, 10 Cir., 72 F.2d 464, certiorari denied, 293 U.S. 620, 55 S.Ct. 215, 79 L.Ed. 708; Barnidge v. United States, 8 Cir., 101 F.2d 295.

Defendant's rights are claimed under the Act of Congress approved March 3, 1905, 33 Stat. 1006, which provided as follows:

"An Act Providing for the acquirement of water rights in the Spokane River along the southern boundary of the Spokane Indian Reservation, in the State of Washington, for the acquirement of lands on said reservation for sites for power purposes and the beneficial use of said water, and for other purposes.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the right to the use of the waters of the Spokane River where the said river forms the southern boundary of the Spokane Indian Reservation may, with the consent of the Secretary of the Interior, be acquired by any citizen, association, or corporation of the United States by appropriation under and pursuant to the laws of the State of Washington."

"Sec. 2. That the Secretary of the Interior be, and he hereby is, authorized and empowered to grant such appropriator or appropriators land on said reservation, whether the same has been allotted in severalty to any individual Indians, but which has not been conveyed to the allotee with full power of alienation, or whether the same remains unallotted, on the north bank of the said Spokane River, such as shall be necessary and requisite for overflow rights and for the erection of suitable water, electrical, or power plants, dams, wing walls, flumes, or other needful structures required for the development of power or for the beneficial use of said water: Provided, That no lands shall be granted under this Act until after the Secretary of the Interior is satisfied that the person, association, or company applying has made said application in good faith and with intent and ability to use said lands for the purposes above specified and that it requires the quantity of land applied for in such use, and in case objection to the grant of said land shall be made the said Secretary shall afford the parties so objecting a full opportunity to be heard.

"Sec. 3. That the compensation to be paid for said land by said applicants shall be determined in the manner prescribed in section three of the Act of March second, eighteen hundred and ninety-nine, entitled `An Act to provide for the acquiring of rights of way by railroad companies through Indian reservations, Indian lands, and Indian allotments, and for other purposes.' * * *"

In conformity therewith, the Secretary of the Interior, on September 29, 1905, promulgated the departmental regulations. Sec. 5.

On July 27, 1909, defendant filed its first application to secure from the Secretary of the Interior the rights to the use of the waters of the Spokane River and the grant necessary and requisite for overflow rights and for the erection of a suitable 60 foot dam for the development of power at the point here involved. That application was studied by several Bureaus in the Department. The granting of it was vigorously opposed by the Director of Geological Survey and on July 29, 1911, the Secretary notified the Company that, at that time, he would not pass upon the application. He pointed out that he would want the application amended so as to provide for a higher dam in order to make full use of the power potentially capable of development at the site. But the real basis of his refusal was that he did not like the 1905 Act and was hopeful that additional legislation might be adopted by Congress. (Hereafter the Secretary of the Interior will be referred to as the Secretary.)

As a result of the Secretary's letter, further efforts by defendant until November, 1913, to acquire rights under the 1905 Statute consisted of considerable engineering work performed for the defendant by its chief engineer, H. L. Russell, and surveys and studies made by independent engineering firms. On March 8, 1914, defendant filed with the Secretary further application in which it proposed to build an 80 foot dam. After consideration in the Department, it was decided to require of the defendant the filing of a surety bond in the sum of $10,000 conditioned that the defendant would make the necessary surveys to determine the amount of land required to be acquired for overflow purposes for a dam 80 feet in height which would lie below an elevation of 1192 feet above mean sea level according to the datum of the United States Geological Survey, that it would file its amended applications within six months from the date of the approval of the bond, that it would construct the hydroelectric power project within five years after the application for the grants had been approved and that it would pay for the lands granted a reasonable value thereof as assessed under the direction of the Secretary of the Interior. This bond was approved and filed on August 5, 1914. Thereupon Russell conducted a survey in an effort to ascertain the amount of land necessary to be acquired. Maps were prepared. The application and the maps were filed December 19, 1914. This application was studied by the Geological Survey, the Bureau of Indian Affairs and the office of the Secretary. In 1915, prior to the granting of the application, defendant paid to the Government the amount fixed as the appraised value of the lands acquired.

On April 7, 1916, the Secretary, in a memorandum to the President, recommended that the President approve the modification of the power site reserve orders of October 4, 1910, and of July 29, 1911, so as to permit...