United States v. Humboldt Lovelock Irr. Light & P. Co.

• Decision Date: 31 May 1938
• Docket Number: No. 8695.,8695.
• Citation: 97 F.2d 38
• Parties: UNITED STATES (PERSHING COUNTY WATER CONSERVATION DIST. OF NEVADA et al., Interveners) v. HUMBOLDT LOVELOCK IRR. LIGHT & POWER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

97 F.2d 38 (1938)

UNITED STATES (PERSHING COUNTY WATER CONSERVATION DIST. OF NEVADA et al., Interveners) v. HUMBOLDT LOVELOCK IRR. LIGHT & POWER CO.^*

No. 8695.

Circuit Court of Appeals, Ninth Circuit.

May 31, 1938.

Carl McFarland, Asst. Atty. Gen., C. W. Leaphart, Clifford E. Fix, and W. D. Donnelly, Attys., Department of Justice, all of Washington, D. C., E. P. Carville, U. S. Atty., of Reno, Nev., and Roy W. Stoddard, Sp. Asst. to Atty. Gen., for the United States.

Prince A. Hawkins, Robert Z. Hawkins, and Hawkins, Mayotte, & Hawkins, all of Reno, Nev., and Clarence M. Hawkins, of Oakland, Cal., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

HANEY, Circuit Judge.

Appeal is taken from an order dismissing a bill of complaint filed by the United States, hereinafter referred to as appellant, and its motion for an injunction pendente lite.

In what is called the "arid state" of Nevada "there are but four small streams that pretend to flow for a comparatively short distance continuously throughout the year, one being the Humboldt River, whose supply of water is utilized to the greatest possible extent". Pitt v. Scrugham, 44 Nev. 418, 426, 195 P. 1101, 1103. That river "extends for a distance of about 300 miles, is in five counties and three judicial districts" and in 1914 it was estimated that there were from 700 to 1000 users of the water of such river. Ormsby County v. Kearney, 37 Nev. 314, 337, 142 P. 803. Involved herein are water rights in that stream.

The bill alleged that appellee is a Nevada corporation; that appellant, prior to and on April 23, 1937 was, and continuously since that date has been "the owner of about 52,900 acre feet of the waters of the Humboldt River in Nevada"; that the "water rights were originally appropriated and diverted from the Humboldt River and used for the irrigation of lands situated in the neighborhood of the Towns of Battle Mountain and Imlay, Nevada" and that the priority dates of appropriation of such waters were "practically" all prior to 1908; and that appellant "prior to September 8, 1936, purchased these water rights."

It is further alleged that appellant "since September 8, 1936 has had the right, under permits duly issued by the State Engineer of Nevada, to change the place of use and point of diversion of said water for use upon lands within the boundaries of the Pershing County Water Conservation District of Nevada, * * * a Nevada irrigation district"; that "under the continuous flow basis of distribution of the waters of the Humboldt River adopted by the State Engineer of Nevada for the irrigation season of 1937" appellant had the right to divert a maximum flow of water specified in second feet for designated periods of time; and that under "the terms of a written contract dated October 1, 1934" between appellant and the irrigation district, appellant "is obligated to deliver" such water to the "intakes of the various ditches used for the irrigation of the lands within" the irrigation district.

The bill also alleges that appellee "is the owner of two reservoirs * * * situated * * * upstream from irrigated lands within the boundaries of the irrigation district and has two permits to divert water from the Humboldt River to store in its said reservoirs to the extent of about 50,000 acre feet with priorities of the years 1908 and 1911"; and that appellant's water rights "are all prior to and superior to the storage rights of" appellee.

It is also alleged in the bill that commencing "on April 23, 1937 and continuously thereafter", during which time appellant delivered water, pursuant to the contract, to the irrigation district, appellee "wrongfully, forcibly and in defiance of the lawful orders and control of the State Engineer of Nevada, and in defiance of the property rights of" appellant, took and diverted, "water belonging to" appellant, which amounted to approximately 4,075-acre feet during the time from April 23, 1937 to the time when the bill was filed on May 27, 1937; that such "wrongful and unlawful taking and storing of water * * * has caused and will continue to cause irreparable damage in loss of crops to members of the" irrigation district, and has prevented and will prevent appellant "from fulfilling the obligations of its" contract; and that appellee threatens to and will, unless enjoined, "continue to so divert, take, store and convert to its own use" such waters.

Appellant prayed for (1) an injunction pendente lite enjoining appellee from interfering with waters belonging to appellant; (2) a permanent injunction to the same effect; and (3) appointment of a water master for the purpose of enforcing the orders of the court, including an order requiring the release of the water unlawfully diverted and stored by appellee.

On May 29, 1937, appellant filed a motion for an injunction pendente lite, with an affidavit of L. J. Foster, engineer in charge of construction of the Humboldt Federal Reclamation Project, and an affidavit of S. R. Marean, the hydrographer of the same project. Appellant gave notice that the motion would be heard on June 7, 1937, which notice contained the statement that in presenting the motion, appellant would rely on the verified bill, the affidavits and testimony of ten witnesses.

On June 5, 1937, the irrigation district and Union Canal Ditch Company, a Nevada corporation, with W. W. Carpenter on their behalf and on behalf of all other water users of the irrigation district, each filed a petition for an order permitting the filing of a bill of intervention. Each petition was granted by orders made on the same day, and each filed a bill of intervention. On the same date, the ditch company and Carpenter filed a motion for an injunction pendente lite, with Carpenter's affidavit, and gave notice that the motion would be presented at the same time that appellant presented its motion.

On June 7, 1937, appellee filed an answer and counterclaim. Before relating the facts, pertinent here, appearing from the affidavits and the verified answer and counterclaim, certain statutes of Nevada which are explanatory, should be noticed.

The water code of Nevada (Act of March 22, 1913, Laws of Nevada, 1913, Ch. 140, p. 192), as amended, Comp.Laws Nev. § 7890 et seq., created the office of state engineer, provided a procedure for determining water rights by him, and required the state engineer to make and record in his office an order determining and establishing the several rights to the waters of the stream in controversy. Thereafter, the state engineer is required to file a certified copy of the order, the original evidence and transcript of testimony, with the ex officio clerk of the district court, obtain an order of the district court fixing the time for hearing of the order, and to mail copies of the order to the interested parties. Interested parties who are dissatisfied with the order may file exceptions to the order. The court shall then hear the proceedings and enter findings and a decree approving or modifying the order of the state engineer. The court's decree is final and conclusive upon all persons and rights lawfully embraced within the adjudication. In the event that suit is brought in a district court for the determination of water rights, it is provided that all persons claiming such rights shall be made parties thereto.

The water rights, to which appellant allegedly became the owner, with priority dates prior to 1908, originally included right of use by direct diversion only, and included no storage rights. Appellee's rights, with priority dates of 1908 and 1911, included storage rights. Its reservoirs were completed about 1912.

On November 22, 1916, appellee commenced a suit in a state court (hereafter referred to as the first state court suit) against the state engineer and the water commissioner, and involved the same water rights of appellee, mentioned herein. The complaint is not before us, but on November 27, 1918, the state court made a decree, perpetually enjoining the state engineer and all persons acting under his authority, from in any way interfering with appellee's dam, or rights to divert and store waters. The record discloses no explanation for the suit.

On September 29, 1922, the state engineer made his final order and determination of ownership of water rights in the Humboldt River stream system,¹ and filed it in the state court on January 17, 1923. On October 20, 1931, the state court in that proceeding (hereafter called the second state court suit) made its findings and decree.² By that decree the water rights, now alleged to be owned by appellant, were adjudicated, as were the rights of appellee. The decree provided that for the "purpose of administration and distribution of the waters of the Humboldt stream system and its tributaries" the state engineer should fix the date of the beginning of the irrigation system; that the stream system was divided into two districts, and that distribution between the districts should be made in a manner specified in the decree. The decree also provided:

"That the rights of appropriation hereby confirmed are appurtenant to the lands herein described for irrigation purposes, and the right of use of the waters of said stream and its tributaries by virtue of such rights of appropriation are limited and confined to the irrigation of the lands described herein to the extent of said lands as herein set forth, and the priorities herein confirmed confer no right of use of the waters of said stream, and its tributaries, on the lands other than those specified tracts to which such rights of appropriation are herein set forth as appurtenant. The right of a water user to change the place of use of a vested water right, in the manner, now or hereafter, provided or permitted by law shall not be prohibited or affected by this decree."

Sometime prior to 1934, appellant began construction of a reclamation project, which contemplated the construction...