United States v. Ickes

• Decision Date: 13 April 1936
• Docket Number: No. 6445.,6445.
• Citation: 84 F.2d 228
• Parties: UNITED STATES ex rel. SIERRA LAND & WATER CO. v. ICKES, Secretary of the Interior.
• Court: U.S. Court of Appeals — District of Columbia Circuit

84 F.2d 228 (1936)

UNITED STATES ex rel. SIERRA LAND & WATER CO. v. ICKES, Secretary of the Interior.

No. 6445.

United States Court of Appeals for the District of Columbia.

Decided April 13, 1936.

F. W. Clements, of Washington, D. C., for appellant.

Frederic L. Kirgis, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

VAN ORSDEL, Associate Justice.

On November 30, 1923, the Sierra Land & Water Company, a California corporation, filed in the local land office at Independence, Cal., four applications for rights of way over the public domain. The applications were made under the Act of Congress of March 3, 1891, 26 Stat. 1095, and section 2 of the Act of May 11, 1898, 30 Stat. 404, as amended (43 U.S.C.A. § 951), which provide for the granting of rights of way for canals and reservoirs to carry and store water for irrigation. In each application Rush creek was stated as the source of water supply, and the applications were based upon an appropriation of 75,000 miner's inches of water from Rush creek, in accordance with the laws of the state of California.

In 1923 the Commissioner of the General Land Office rejected the four applications, on the ground that there was no evidence to establish the existence of the water right claimed, or of the possibility of plaintiff company's securing water for the carrying out of the irrigation project. The action of the commissioner was based on the statutes and regulations of the Department of the Interior.

Appeal was taken from the decision of the Commissioner to the Secretary of the Interior, and the secretary was requested by plaintiff company to suspend action on the appeal, pending an adjudication in the courts of California between the city of Los Angeles and others as to the right to the use of the waters of Rush creek. It was claimed that if plaintiff's rights were established to the waters involved in that litigation, it would furnish a basis for an approval by the secretary of the rights of way for the construction of the irrigation works.

On September 27, 1933, a final decision in the California litigation was reached by the Supreme Court of that state, which decision was adverse to the claims of plaintiff company, holding that it possessed no enforceable right to the water claimed by it. Sierra Land & Water Company v. Cain Irrigation Company, 219 Cal. 82, 25 P.(2d) 223.

After notice of the decision of the Supreme Court of California, the appeal was taken up for consideration by the Secretary of the Interior. The secretary affirmed the commissioner's decision, on the ground that plaintiff company had been held by the courts to have no right to the use of the waters relied upon by it, and essential to the operation of the proposed irrigation system.

Thereafter plaintiff raised the question as to the authority of the secretary to require evidence of a water right, or the sufficiency of the source of supply, as a condition precedent to the approval of plaintiff's applications for ditch and reservoir rights of way. This contention was made in a petition by plaintiff for the exercise of supervisory authority by the secretary, which amounted to a petition for rehearing of the matters presented by the appeal. Upon the refusal of the secretary to reopen the case, the present suit was instituted, alleging the invalidity of these requirements by the secretary, and seeking a writ of mandamus to compel the secretary to approve its several applications for rights of way, notwithstanding the failure of the company to furnish evidence of its right or ability to obtain water for carrying out its project.

The Act of Congress of March 3, 1891, 26 Stat. 1095, comprehended a broad policy for the irrigation of the arid public lands of the West. It provided for the irrigation of lands embraced within the timber culture acts and the acquiring of land by settlers under the Desert Land Act. Section 2 (43 U.S.C.A. § 327), amending the Act of March 3, 1877, provided in part as follows: "Sec. 4. At the time of filing the declaration hereinbefore in this chapter required the party shall also file a map of said land, which shall exhibit a plan showing the mode of contemplated irrigation, and which plan shall be sufficient to thoroughly irrigate and reclaim said land, and prepare it to raise ordinary agricultural crops, and shall also show the source of the water to be used for irrigation and reclamation. Persons entering or proposing to enter separate sections, or fractional parts of sections, of desert lands, may associate together in the construction of canals and ditches for irrigating and reclaiming all of said tracts, and may file a joint map or maps showing their plan of internal improvements."

Section 18 of the Act (see 43 U.S.C.A. § 946 and note) provides: "That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any State or Territory, which shall have filed, or may hereafter file, with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and fifty feet on each side of the marginal limits thereof; also the right to take, from the public lands adjacent to the lines of the canal or ditch, material, earth, and stone necessary for the construction of such canal or ditch: Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps of location shall be subject to the approval of the Department of the Government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories."

By the Act of May 11, 1898, 30 Stat. 404 (43 U.S.C.A. § 951), it was further provided that the rights of way "may be used for purposes of a public nature; and said rights of way may be used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation."

Section 19 of the Act of March 3, 1891 (43 U.S.C.A. § 947), provides: "Any canal or ditch company desiring to secure the benefits of this act sections 946 to 949, inclusive, shall, within twelve months after the location of ten miles of its canal, if the same be upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a map of its canal or ditch and reservoir; and upon the approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said office, and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way. Whenever any person or corporation, in the construction of any canal, ditch, or reservoir, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage."

Sections 18 and 19 must be construed together, as section 18 does not confer a right independently of section 19, and section 20 of the act (43 U.S.C.A. § 948) extends its provisions to apply to "all canals, ditches, or reservoirs, heretofore or hereafter constructed, whether constructed by corporations, individuals, or association of individuals, on the filing of the certificates and maps therein provided for."

In the exercise of the broad jurisdiction conferred upon the Secretary of the Interior in respect of the disposition of the public lands of the United States, he has promulgated from time to time regulations, among which are the following:

"While these acts grant rights of way over the public lands necessary to the maintenance and use of ditches, canals, and reservoirs, the control of the flow and use of the water is, so far as this act is concerned, vested in the States or Territories, the jurisdiction of the Department of the Interior being limited to the approval of maps carrying the right of way over the...