United States v. Big Horn Land & Cattle Co.

• Decision Date: 17 January 1927
• Docket Number: No. 7141.,7141.
• Citation: 17 F.2d 357
• Parties: UNITED STATES v. BIG HORN LAND & CATTLE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

17 F.2d 357 (1927)

UNITED STATES v. BIG HORN LAND & CATTLE CO.^*

No. 7141.

Circuit Court of Appeals, Eighth Circuit.

January 17, 1927.

Ivor O. Wingren, Asst. U. S. Atty., of Denver, Colo. (George Stephan, U. S. Atty., of Denver, Colo., on the brief, and W. J. Ise, of Denver, Colo., of counsel), for the United States.

Robert L. Stearns, of Denver, Colo. (Mason A. Lewis and James B. Grant, both of Denver, Colo., and Frank L. Moorhead, of Boulder, Colo., on the brief), for appellee.

Before KENYON, Circuit Judge, and SCOTT and SANBORN, District Judges.

SCOTT, District Judge.

The United States, as plaintiff, brought this suit against the Big Horn Land & Cattle Company, a Colorado corporation, to obtain a decree of forfeiture of a right of way through public lands for an irrigation ditch and reservoir, acquired by the defendant as grantee of one William Marr, who acquired the right under the Act of Congress approved March 3, 1891 (26 Stat. 1095). By the allegations of plaintiff's bill it is made to appear:

That sections 9, 20, and 21 in township 11 north, range 82 west of the sixth principal meridian, in Jackson county, Colo., were at all times a part of the public domain of the United States, and that section 16 of the same township and range, on the admission of Colorado to the Union, became a part of the school lands of that state, and so remained until the 27th day of February, 1908, on which date said section was reconveyed to the United States in exchange for other lands, and then became and thereafter remained a part of the public domain. That situated on said sections are two natural lakes, commonly called and known as "Big Creek Lakes." The smaller of said lakes is approximately circular in form, and is about one-half mile wide at its widest points, and covers an area of approximately 140 acres, and is located above and approximately 1,000 feet from the larger lake, which is about three-quarters of a mile wide and 1 1/8 miles long, and covers an area of approximately 600 acres. That said lakes are connected by a natural water course, through which the waters of the smaller or upper lake flow into the larger or lower lake. That said lakes receive their water supply from Big creek, which also constitutes the outlet of said lakes. That the lakes are located close to the top of the Continental Divide, at an altitude of approximately 9,000 feet, and contain trout and other fish in large numbers, and said lakes afforded, prior to the acts of the defendant as alleged, and except for the acts of the defendant would now afford, recreation and enjoyment to the public.

That on the 8th day of June, 1899, the Secretary of the Interior of the United States approved, subject to all rights then existing, a certain map theretofore filed in the United States Land Office at Denver, Colo., by William Marr, under sections 18, 19, 20, and 21 of the Act of Congress approved March 3, 1891 (Comp. St. §§ 4934-4937), for a reservoir for irrigation purposes; said map of the reservoir being designated "Map of Big Creek Reservoir." That said reservoir, as shown by and designated on said map, is located upon sections 9, 16, 20, and 21 aforesaid, and comprises the two natural lakes, known as "Big Creek Lakes," mentioned. That defendant or its predecessors did not, prior to February 27, 1908, apply to the state of Colorado for right of way or authority to occupy said section 16 for the purpose of said reservoir, and did not prior to said date receive from any officer of the state of Colorado any authority to construct said reservoir or to overflow the said land; nor has defendant or its predecessors made application or received from the Department of the Interior or the Department of Agriculture any permission or authority to occupy any of the lands described in the bill, except as therein set forth. That thereafter the Big Horn Land & Cattle Company succeeded to all the rights of said William Marr in said Big Creek reservoir.

That defendant or its predecessors have not completed said reservoir, or any part thereof, and no construction work has been done upon the same, although more than five years have elapsed since the approval of the said map by the Secretary of the Interior, and the natural volume of water in said lakes as they existed prior to the filing of said map has not been added to or raised by or on account of any act of the defendant or its predecessors, although the said map called for and represented construction work which would raise the waters of the larger of said lakes 16 feet above their natural level. That defendant unlawfully asserts and claims the right to the exclusive possession of the land and waters of said lakes, and for a long time past has occupied, possessed, and used, and is now using, said lakes as a private fishing preserve, and has prevented and excluded, and is now preventing and excluding, all other persons and the public generally from fishing in said lakes, and maintains posted notices in numerous places around and near the edges of said lakes, warning the public not to trespass on said land or fish in said lakes, declaring the same a "Licensed Fish Preserve."

The plaintiff further alleges that said sections 9, 20, and 21 were on the 9th day of January, 1904, withdrawn temporarily for forest purposes, and were reserved and set aside by proclamation of the President as a part of the Park Range Forest Preserve on June 12, 1905; that upon the reconveyance of said section 16 to the United States on February 27, 1908, said section thereby became a part of the Park Range Forest Reserve; that by executive order of June 25, 1908, all of the described lands were made a part of the Hayden National Forest, and now so remain.

The defendant, answering the bill, admits that on February 27, 1908, section 16 was reconveyed to the plaintiff in exchange for other lands, but denies that any of the lands described in the bill ever became a part of the Park Range Forest Reserve, or the Hayden National Forest. Defendant, further answering, alleges that that portion of said lands known as "Big Creek Lakes," and the land surrounding the same to a line 50 feet above the high-water mark, is now held and owned by the defendant by reason of the location and building thereon of a certain reservoir known as the Big Creek reservoir, which reservoir was located and title claimed thereto by reason of compliance with the laws of the United States and the state of Colorado governing the taking up, location, and acquiring title to reservoirs, reservoir sites, canals, and ditches, and that defendant and its predecessors have been in the exclusive, uninterrupted, and lawful possession of said lands and lakes since the 10th day of November, 1895, the date upon which work was commenced upon said reservoir, proper filings and claims having been made to obtain title for the same, and that the required maps and filings upon said lakes were filed with the state engineer of the state of Colorado, with the county clerk and recorder of Larimer county, Colo., said lands and reservoir being at that time in the county of Larimer, and with the Department of the Interior of the United States of America, and with the General Land Office of the United States, at Denver, Colo., and that said maps and filings were duly approved by the Acting Secretary of the Interior of the United States, on the 8th day of June, 1899, and the work contemplated by said maps and filings was duly completed within the time required by law for such completion, and said defendant and its predecessors have used said lakes and reservoir continuously from the 10th day of November, 1895, for the storage of water for the irrigation of lands, and have spent large sums of money in the construction of dams, irrigation ditches, headgates, and laterals in connection therewith, and are now irrigating approximately 4,000 acres of land by means thereof. The defendant admits the location of said "Big Creek Lakes," their form and area, and that they are connected by a natural water course, and that Big creek constitutes their source of water supply and outlet, as alleged in the bill.

The defendant further denies that it or its predecessors have not completed said reservoir, and denies that the volume of waters in said lake as they existed prior to the filing of said map has not been added to or raised on account of the acts of the defendant, and alleges that said William Marr, prior to transferring his interest in the Big Creek reservoir to the defendant company, and within 5 years from the approval of the map and filings by the Secretary of the Interior, expended large sums of money in the construction of substantial dams upon said reservoir, which greatly enlarged and enhanced the volume of waters theretofore contained in said lakes; that the waters so impounded have been used continuously for approximately 20 years upon the lands of the defendant and its predecessors, and that the water so impounded is the only source of water by which said lands can be properly irrigated. The defendant admits that it asserts and claims the right to exclusive possession of the lands and waters of said lakes, and its right to keep notices posted and to prevent and exclude from a strip of land 50 feet above the high-water mark of said lakes, all persons, and to keep persons from trespassing upon, fishing in, or otherwise using the waters of said lakes, and admits that it asserts and claims the right to the exclusive possession of the land and water of said lakes, and alleges that for a long time past it has occupied, possessed, and used, and is now using, said lakes as a private fishing preserve, and has prevented and excluded, and is now excluding, all of the public generally from fishing in said lakes, but asserts that it has full right and authority so to do.

The foregoing sufficiently states the issues for the purposes of this opinion. Upon the trial of these issues the District Court...