United States v. Haga

• Citation: 276 F. 41
• Decision Date: 10 August 1921
• Docket Number: 846.
• Parties: UNITED STATES v. HAGA et ux.
• Court: U.S. District Court — District of Idaho

276 F. 41

UNITED STATES v. HAGA et ux.

No. 846.

United States District Court, D. Idaho, Southern Division.

August 10, 1921

James L. McClear and B. E. Stoutemyer, both of Boise, Idaho, for the United States.

Richards & Haga, of Boise, Idaho, for defendants.

DIETRICH District Judge.

The defendant owns 320 acres of land on Eight Mile creek in Ada county, Idaho. For its irrigation he maintains two ditches diverting water from the channel of the creek. Constructively at least, the creek is a tributary of Boise river. The land is within the boundaries of a large tract for the irrigation of which the government has constructed an expensive irrigation system commonly referred to as the Boise-Payette or Boise project. This system heads in the south bank of the Boise river and supplies water to more than 150,000 acres including a considerable area within the Eight Mile creek drainage, a short distance above the defendant's lands. In constructing the system the Secretary of the Interior took over the New York Canal under an agreement with the owning corporation, the stockholders of which were farmers holding lands to which it supplied water. By the agreement the government became the owner of the existing canals and ditches, with the right to enlarge and alter them as it might see fit; but the canal company and its stockholders reserved the water right appurtenant thereto, with the understanding that the water owned by them would continue to be delivered through the enlarged system, their only obligation being to pay a ratable part of the expense of maintenance and operation. This arrangement was made in 1906, whereupon the government took possession of the system, greatly increased its capacity, built an extensive distributing system, and also constructed two reservoirs, the Deer Flat, for the lower reaches of the project, and Arrowrock, upon the river itself a few miles above the head of the main canal.

Admittedly during the early springtime at least, Eight Mile creek received a little water from the natural drainage, but it is further to be conceded that after the commencement of the irrigation season most of the water flowing in the channel at the head of the defendant's ditches has its source in surface waste and seepage incident to the use of water from the government canals in the irrigation of lands lying along or near the creek above the defendant's points of diversion. The government has made provision for the utilization of all the water flowing in the creek for the irrigation of project lands, and the question in controversy is whether it or the defendant has the better right. Perhaps it should be added at this point that the government is an appropriator of a large amount of the natural flow of Boise river for direct use upon the project lands, and also impounds in the Arrowrock reservoir a large volume which it releases in the latter part of the season when the river is low, and diverts into its canal system in the same manner as the natural flow. Its rights as an appropriator are subsequent to those of the New York Canal Company and of other large ditch companies diverting water at various points farther down the river, some above and some below the mouth of Eight Mile creek.

The contention of the government is, first, that, assuming the creek to be a tributary of the river and the water therein to be natural flow, the river and its tributaries are to be deemed to be a single unit; and inasmuch as the defendant's appropriations are subsequent to many of the large appropriations directly from the river, the government has the right to demand that the water of the creek be permitted to go to the river to supply such early rights in order that there may be left in the river at the point of its diversion, higher up, an equivalent amount to supply its right, which is prior to the larger of the defendant's appropriations. While as a general principle of law the correctness of the proposition may be conceded, the position is thought to be untenable for these reasons:

(1) While, as already stated, the creek is constructively a tributary of the river, there is no showing that naturally, during the irrigation season, it actually makes any contribution to the river flow. There is a continuous channel, it is true, and there are doubtless short periods of unusual run-off in extraordinary seasons when there is a discharge into the river; but the showing is insufficient to warrant a holding that the older diversions from the river have any substantial beneficial interest in the creek. An appropriator from a main channel can complain of a diversion from a 'tributary' only if and when such tributary would, if not interfered with, make a valuable contribution to the main stream.

(2) In the second place, there is no warrant for finding that in normal seasons there is any natural flow in the creek later than June 1st, whereas up to about July 1st, and sometimes to a later date, there is an abundance of water in Boise river proper for the supplying of all rights therein, and hence the use of the creek by the defendant infringes no appropriator's right. It follows that plaintiff is not in any way injured by the defendant's diversion of the natural flow of the stream.

The second contention is that substantially all of the water in the creek during the irrigation season comes from plaintiff's canals by the way of surface waste from irrigated fields and the seepage of percolating waters from the same source, and that plaintiff has a superior right to pick up this water and apply it to other beneficial uses upon the project. In point of fact, I think it must be found that except for a very short period in the spring the amount of natural flow in the creek is negligible. It is insufficient either in volume or continuity of flow to be susceptible to beneficial use in irrigating farm lands. In an exceptional year an unusually heavy rain may result in a temporary run-off, but from the evidence as a whole the conclusion is irresistible that the stream in its natural state is not dependable as a source of irrigation even in May; and generally speaking, after May, the creek is only a dry channel.

In point of law the general principle upon which the plaintiff relies is scarcely open to controversy; one who by the expenditure of money and labor diverts appropriable water from a stream, and thus makes it available for fruitful purposes, is entitled to its exclusive control so long as he is able and willing to apply it to beneficial uses, and such right extends to what is commonly known as wastage from surface run-off and deep percolation, necessarily incident to practical irrigation. Considerations of both public policy and natural justice strongly support such a rule. Nor is it essential to his control that the appropriator maintain continuous actual possession of such water. So long as he does not abandon it or forfeit it by failure to use, he may assert his rights. It is not necessary that he confine it upon his own land or convey it in an artificial conduit. It is requisite, of course, that he be able to identify it; but, subject to that limitation, he may conduct it through natural channels and may even commingle it or suffer it to commingle with other waters. In short, the rights of an appropriator in these respects are not affected by the fact that the water has once been used. U.S. v. Ramshorn Ditch Co. (D.C.) 254 F. 842; Ramshorn Ditch Co. v. U.S. (C.C.A.) 269 F. 80; McKelvey v. North Sterling Irr. Dist., 66 Colo. 11, 179 P. 872; Lambeye v. Garcia, 18 Ariz. 178, 157 P. 977; Hagerman Irr. Co. v. East Grand Plains D. District, 25 N.M. 649, 187 P. 555; Griffiths v. Cole et al. (D.C.) 264 F. 369; Twin Falls Canal Co. v. Damman (this court No. 689, oral decision rendered September 19, 1919, filed August 20, 1920) 277 F. 331.

In no wise is this view out of harmony with the provisions of the Idaho statute cited by the defendant. Section 5556 of the Compiled Statutes declares only that 'all the waters of the state, when flowing in their natural channels, ' etc., are the property of the state and subject to its supervision, and section 5558 further provides that 'the right to the use of the waters of rivers, streams,' etc may be acquired by appropriation. But the waters under discussion diverted from the Boise river and carried many miles through the plaintiff's costly system of artificial canals and from them indirectly discharged into Eight Mile creek are not 'flowing in their natural channels.' If all water flowing in a natural channel is subject to...