United States v. Burley

• Court: United States District Courts. 9th Circuit. District of Idaho
• Citation: 172 F. 615
• Parties: UNITED STATES v. BURLEY et al.
• Decision Date: 29 March 1909

172 F. 615

UNITED STATES
v.
BURLEY et al.

United States Circuit Court, D. Idaho, Central Division.

March 29, 1909

[172 F. 616]

C. H. Lingenfelter, Hugh E. McElroy, C. E. Stoutemyer, and S. L. Tipton, for the United States.

John G. Willis and J. L. Niday, for defendants.

DIETRICH, District Judge (orally).

This is a proceeding in eminent domain, brought by authority of the Attorney General, on behalf of the United States, to condemn certain lands of the defendant for reservoir purposes, pursuant to an application made therefor by the Secretary of the Interior, proceeding under the provisions of an act of Congress entitled 'An act appropriating the receipts from the sale and disposal of public lands in certain states and territories for the construction of irrigation works for the reclamation of arid lands,' approved June 17, 1902. Act June 17, 1902, c. 1093, 32 Stat. 388 (U.S. Comp. St. Supp. 1907, p. 511).

By agreement of counsel, all issues excepting that of the value of the lands taken were submitted to the court without a jury. Two general questions are presented by the record: Does the law authorize the Secretary of the Interior to construct a project of the character of that for which these lands are sought? And are the lands reasonably necessary to such construction?

The latter question may be summarily disposed of. Without conflict, the evidence conclusively shows that the reservoir, which is an essential feature of the projected irrigation system, cannot be utilized to its full capacity without submerging the defendant's lands. Leaving out of consideration lands privately owned, it will be necessary to maintain the impounded water at a level above the lands in question in order to reach tracts the title to which is still in the government. It follows that the taking of these lands is necessary, if the plan of irrigation adopted by the Secretary of the Interior is to be carried out. Whether, as has been suggested, an equally feasible, or more feasible, scheme might not be devised, and whether some other reservoir site might not be selected, are immaterial inquiries. The record discloses no circumstances or conditions taking the case out of the general rule that, in the absence of bad faith, the judgment of the party exercising the right of eminent domain as to what and how much land shall be taken is conclusive.

The other point, the authority of the Secretary of the Interior to engage in such an enterprise, involves somewhat different, though kindred, considerations. Upon the part of the defendant it has been earnestly and persistently urged that the question is foreclosed, adversely [172 F. 617] to the government, by the 'Kansas-Colorado Case.'

Kansas v. Colorado, 206 U.S. 91, 27 Sup.Ct. 655, 51 L.Ed. 956. But I am unable to yield to this contention. The point in that case was that the government was claiming some dominant right to the waters of the Arkansas river, which was conceded to be a nonnavigable stream, and hence not within the jurisdiction of the general government as a natural highway. The contention for the government was that, for the purposes of reclaiming arid lands, it has superior authority over, and supervisory control of, the waters in such streams, to the exclusion of state jurisdiction. The conclusion of the court was that 'each state has full jurisdiction over the lands within its borders, including the beds of streams and other waters. ' Here no such issue is tendered. The congressional act, from which alone the Secretary of the Interior derives his authority, expressly provides that in appropriating, distributing, and using water he shall proceed in conformity with the laws of this state; and it is not pretended here that the officers of the government claim, or have claimed, exemption from the limitations...