United States v. Ide

• Decision Date: 07 December 1921
• Docket Number: 5704.
• Citation: 277 F. 373
• Parties: UNITED STATES v. IDE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

277 F. 373

UNITED STATES v. IDE et al.

No. 5704.

United States Court of Appeals, Eighth Circuit.

December 7, 1921

Ethelbert Ward, Sp. Asst. Atty. Gen., and Albert D. Walton, U.S. Atty of Cheyenne, Wyo. (Willis J. Egleston, Dist. Counsel, U.S Reclamation Service, of Helena, Mont., and Clyde M. Watts Asst. U.S. Atty., of Cheyenne, Wyo., on the brief), for the United States.

Avery Haggard, of Cheyenne, Wyo. (William B. Ross, of Cheyenne Wyo., on the brief), for appellees.

This is an action commenced July 3, 1918, by the appellant against appellees for the purpose of enjoining them from interfering with the construction of a ditch in connection with appellant's Shoshone reclamation project, located in the state of Wyoming. The parties hereafter will be referred to as they were in the trial court. The original defendants were Arthur W. Ide, Charles Grant Caldwell, and H. B. Loomis. On motion Christopher Althoff, Arthur R. Thornberg, Earl Kysar, D. E. Townsley, and Agnes H. Caldwell were allowed to intervene as parties defendant. The defendants filed separate answers to the complaint of the plaintiff, and by way of counterclaim prayed that the plaintiff be enjoined from constructing the ditch above mentioned, and from performing any acts that would injure defendants' lands and water rights located along said proposed ditch. Judgment for damages for trespasses already committed was also asked. On final hearing upon pleadings and proofs the trial court granted the defendants damages in the aggregate sum of $3,150, dismissed plaintiff's complaint, and enjoined plaintiff and its officers, agents, employees, and representatives from interfering in any way with defendants' appropriation and use of the waters of Bitter creek, so called, for the purpose of irrigating their lands, and from constructing or maintaining any ditches or other works which would destroy or interfere with the maintenance and use by defendants of diversion drains, ditches, and other means of conveying water from Bitter creek to defendants' lands for irrigation purposes. It was further adjudged and decreed that if the plaintiff should, within 30 days from the date of the decree, file in the cause its election to furnish each of the defendants, other than A. W. Ide, a perpetual water right for the irrigation of their lands, and at the same time file a proper instrument in writing conveying without cost to each of said defendants, other than defendant A. W. Ide, perpetual water rights for the irrigation of their respective holdings of land in an amount equal to their respective appropriations of water from Bitter creek as evidenced by their water permits granted by the state of Wyoming, then the defendants should be enjoined from interfering with the plaintiff's construction of said ditch and the diversion and use of water therefrom. The plaintiff filed no election within the time allowed therefor, and a decree was entered as above stated. From this decree plaintiff appealed.

A proper understanding of the case requires a statement, as brief as may be, of the facts as they appear from the record. Plaintiff on the 17th day of June (date of the approval of the Reclamation Act, 32 Stat. 388 (Comp. St. Secs. 4700-4708)), was the owner of 1,000,000 acres of land situated in Big Horn county, Wyo.; a part of said county now being embraced in the county of Park. Through these lands flowed the Shoshone river. On and before the date aforesaid these lands were vacant lands, arid in character, and incapable of producing agricultural crops without artificial irrigation. The only source from which water could be obtained to irrigate these lands was the above named river, the natural flow of which during the crop-growing season varied from a few hundred second feet to several thousand second feet in time of flood. April 21, 1903, March 11, 1904, and April 15, 1904, the Secretary of the Interior, under the authority of the Reclamation Act, above mentioned, withdrew from all forms of entry and sale, except under the homestead laws the public lands in said county of Big Horn. On February 10, 1904, said Secretary, acting under the authority of the same act, authorized and immediately began the carrying out of a reclamation project to be known as the Shoshone project, and which should embrace the lands so withdrawn from entry. The work upon the construction of said project has continued from the date last mentioned till the present time.

A sum in excess of $5,328,000 has so far been expended in the construction of reservoirs, dams, ditches, laterals, and in necessary surveys, and it is estimated that an expenditure of $5,000,000 will be required to complete said project. The principal engineering features of said reclamation project thus far constructed consist of the Shoshone storage reservoir situated in the county of Park above mentioned, with a storage capacity of 456,000 acre feet, completed at an expenditure of $1,364,000. The storage water coming from the Shoshone river into said reservoir is carried down said river as a carrying channel, and diverted at or near Corbett, in said county of Park, and will be diverted at other points along the river. The diversion dam at Corbett is a substantial concrete structure across the Shoshone river, constructed at an expenditure of $97,000. Its purpose is to divert water into the Corbett tunnel, and thence into the Garland Canal. The tunnel diverts about 1,000 cubic feet of water per second of time from the Shoshone river. The canal is 50 miles in length, has 286 miles of lateral ditches, and a capacity of irrigating 82,000 acres of land on the north side of the Shoshone river. Water was applied to the irrigation of the lands of the project in the summer of 1908, and has been applied to more and more lands, until at the commencement of this litigation 55,380 acres of lands under the Garland Canal were being irrigated. The total amount of land which will be irrigated when the project is completed will be 150,000 acres.

In 1899, there was segregated to the state of Wyoming by plaintiff, under the provisions of Act Aug. 18, 1894 (28 Stat. 422 (Comp. St. Sec. 4685)), known as the 'Carey Act,' a tract of land of about 60,000 acres. This segregation was approved by the Interior Department June 9, 1901. May 22, 1899, the state engineer of Wyoming issued a permit to Cody and Salisbury for the diverting of water from the Shoshone river in an amount sufficient to irrigate this tract of 60,000 acres of arid land, with a limitation of one cubic foot per second of time for each 70 acres of land reclaimed. January 26, 1903, the Governor of Wyoming requested the plaintiff to take a relinquishment from the state of said tract of segregated land and an assignment of said water permit, so that plaintiff could irrigate and reclaim said land. The plaintiff accepted a transfer of said land and an assignment of the water permit. The tract of 60,000 acres so segregated by plaintiff to the state of Wyoming, and received back as above stated, embraced and included the lands of defendants.

March 5, 1904, plaintiff filed in the office of the state engineer of Wyoming an application in due form for a permit in conformity to the laws of said state for the construction of the Shoshone reservoir, which application was duly granted. March 28, 1904, plaintiff filed in the same office an application in due form for a permit in conformity with the laws of said state to construct the Garland Canal, which application was duly allowed. On January 3, 1910, plaintiff filed in conformity with the laws of said state an application for a permit in due form for the construction and operation, among others of the Garland Canal and distribution system, and a notice of the withdrawal, reservation, and utilization by the plaintiff of its surplus and unappropriated waters for the reclamation purposes of the Shoshone project. This application was duly allowed by the proper officials of the state of Wyoming with a priority dating back to May 22, 1899, the date of the permit to Cody and Salisbury. The various permits granted by the state of Wyoming to the plaintiff cover the lands of defendants here in controversy.

Prior to the year 1908, plaintiff constructed as a part of its said project the Garland Canal and several laterals above and around the Garland division of the Shoshone project. Beginning with the year 1908, the water of the plaintiff was run through the Garland Canal and the laterals around and above said area, and the lands therein were supplied with water for irrigation. Immediately upon the carrying of water into plaintiff's Garland Canal around and above the drainage line called Bitter creek, and the application of irrigation water from said canal and laterals to the lands situated in the vicinity thereof, waste, return, percolating, and seep water began to appear in portions of said Bitter creek to such an extent that an increasing and continuous stream was created. Adjacent areas of land in the vicinity became saturated and required drainage in order to retain their productivity and to secure the highest agricultural returns.

Beginning in the year of 1910, in furtherance of said project and for carrying out the express purposes thereof, and in contemplation of the condition heretofore described, and to develop and collect water on said project and to drain waterlogged land, and to utilize said waste, percolated, and seepage water, and in accordance with notices theretofore given as above stated, plaintiff found it necessary to construct in the vicinity of Bitter creek a large and deep drainage ditch for developing and collecting waste percolating, and seepage waters resulting from the irrigation with plaintiff's water of lands under said project. The natural...