United States v. O'Neill

• Decision Date: 19 August 1912
• Docket Number: 5,859.
• Parties: UNITED STATES v. O'NEILL et al.
• Court: U.S. District Court — District of Colorado

198 F. 677

UNITED STATES v. O'NEILL et al.

No. 5,859.

United States District Court, D. Colorado.

August 19, 1912

Ethelbert Ward, of Denver, Colo., for petitioners.

Catlin & Blake, of Montrose, Colo., for defendants.

LEWIS District Judge.

This is a proceeding in condemnation. From the petition, answer and reply these facts appear: The plaintiffs have been engaged for the past several years in the construction of an irrigation system in the Uncompahgre Valley, in Montrose and Delta counties. It is in charge of the Secretary of the Interior under authority vested in him by the reclamation Act, approved June 17, 1902 (32 Stat. 388), and is known as the Uncompahgre Valley project. Up to this time about five million dollars has been expended in its construction, but it is not completed. It diverts a large body of water from the Gunnison River through a long tunnel into the Valley, whence it is taken in large canals, from which it is received into smaller canals and from them carried in distributing ditches to the arid acres to be reclaimed. At some places water is turned into small creeks, or other natural drainage ways, and taken therefrom lower down in canals or ditches for carriage and ultimate distribution. It is expected by those in charge for the Government that the system when brought to completion will reclaim about 140,000 acres of dry lands and render them highly productive. The particular part of the system with which we are here concerned is known as ditch D, or the Spring Creek lateral, by which it is intended to take out of Spring Creek, a part of the waters turned into said creek from a canal higher up, and conduct the same for about five miles for the reclamation of some eight hundred acres. Starting at the head of this ditch, about three-quarters of a mile of its course, as projected, is across improved and occupied lands of defendants. That part of it has been surveyed, but no construction work has been done thereon, for the reason that petitioners have been unable to come to terms with the defendants therefor, and consequently this proceeding is for the purpose of acquiring the right thereto by condemnation. Construction work on the remainder of the line of this ditch has been finished.

The defendants resist the attempt of plaintiffs to thus acquire a right of way across their lands. They admit that they were unable to agree on a consideration therefor. They plead two matters in defense, the sufficiency of which must be determined now,-- both raising the question of necessity. The first is stated in the answer thus (p. 10):

'Plaintiffs have laterals from their own irrigation system, surveyed platted and constructed from which they can carry and distribute water upon every acre of land that is covered by said Spring Creek canal (ditch D), and from which distribution and delivery will be and is, wholly feasible and practicable, and that the said proposed Spring Creek canal is wholly unnecessary:'

and in support of this defense they rely upon a state statute, being section 2420, R.S. Colo., 1908, found in the chapter on Eminent Domain, which, in part, is as follows:

'The court or judge * * * shall appoint a board of commissioners of not less than three freeholders to ascertain and determine the necessity for taking such lands. * * * '

Their said second defense is stated in their answer thus (p. 3):

'That many years prior to the filing of the petition herein, to wit, ever since on or about February 24, 1891, there has been constructed and in operation across the lands of defendants sought to be subjected to the burden of a right of way by plaintiffs herein a ditch for the conveying of water from Spring Creek to lands lying beyond the lands of defendants, and ever since said time said ditch has been in operation and has carried the waste, seepage and spring water across the lands of defendants to lands lying beyond for irrigation purposes. That the irrigation of all of the lands adjoining and lying beyond the lands owned by defendants and across which plaintiffs desire to secure a right of way can practicably and feasibly be attained by enlarging the ditch now constructed and in operation across the lands of defendants, and known as the Blye & Hall ditch. That all of the water that is necessary to irrigate the lands sought to be irrigated by plaintiffs can be carried through said Blye & Hall ditch by enlarging the same by the plaintiffs herein. That defendants herein have offered the said plaintiffs the right to enlarge said Blye & Hall ditch, as now constructed, to carry the water necessary to irrigate the lands lying beyond defendants' lands sought to be irrigated and reclaimed by plaintiffs free of any charge, except the retaining by defendants of the water to which they are entitled under their filings and appropriations under the Blye & Hall ditch, and defendants stand ready and willing at this time to deed to plaintiffs a right of way across defendants' lands from Spring Creek along the line of the Blye & Hall ditch, as constructed and filed, free of any charge for such right of way except that defendants' water rights as now existing and enjoyed by them be recognized and the water to which they are entitled (11.32 second feet) to run through such Blye & Hall ditch and delivered to them;'

-- and in support of this defense defendants rely on section 2420, supra, and also on section 3170, R.S., Colo., 1908, being a part of the state act on Irrigation, as follows:

'That no tract or parcel of improved or occupied land in this state, shall, without the written consent of the owner thereof, be subjected to the burden of two or more irrigating ditches constructed for the purpose of conveying water through said property, to lands adjoining or beyond the same, when the same object can feasibly and practicably be attained by uniting and conveying all the water necessary to be conveyed through such property in one ditch.'

There are other facts set up in the answer as a claimed defense against the right to condemn, but, as I am of the opinion that they are material only on the measure of damages, they cannot be considered now, but must stand over for that inquiry.

The petitioners move for immediate possession. The motion is resisted. On the hearing of the motion petitioners presented the affidavits of four persons, from which it appears that they are fully informed of the situation, and they depose that the selected line of ditch D, of which the segments here sought in condemnation are a part, is a necessary route and that no other is practicable to serve the contemplated purposes. One of them deposes that he has known the Blye & Hall ditch for the past eight years and that it has not been maintained or operated or carried any water whatever during that time; that along portions of its claimed route there are no traces of it on the ground; that there is nothing on the ground to indicate that it was ever constructed between points marked 'Intake 1' and 'Intake 2' on exhibits attached, and that it has no headgates or intakes.

The defendants presented the affidavit of one person. He deposes that the Blye & Hall ditch with enlargements will be feasible for the same purpose in contemplation by the petitioners for their ditch and that it would carry water to the lands intended to be served by ditch D, except the strip between the two.

Neither side presented affidavits touching the first defense above noted, but arguments were made thereon based on exhibits that were presented and filed.

The lands sought consist of two disconnected segments, as shown by the maps, along the line of the proposed ditch, fifty feet in width and less than one mile in total length, and a small rectangular tract at the proposed headgate, one hundred feet long by seventy-five feet wide, covering both banks of Spring Creek.

1. Express authority for this proceeding is given by section 7 of the reclamation Act (32 Stat. 388). That Act and the facts here amply disclose that the purpose for which petitioners seek to condemn and take these lands is a public purpose. Burley v. United States, 179 F. 1, 102 C.C.A. 429, 33 L.R.A. (N.S.) 807. The State constitution, statutes and Colorado decisions also declare it to be a public purpose. Colo. Const. art. 16, Sec. 7; R.S. Colo. 1908, Sec. 3169. This is not denied by the defendants.

2. Defendants do not question the necessity of a way to convey the waters from Spring Creek to the lands to be reclaimed; nor do they claim that more land is sought to be taken than is necessary for the construction and maintenance of the ditch if it is to be put through; nor that the proposed ditch is impracticable for the purpose in view; nor that it should be constructed on some other route. I understand them to concede that under the local rule these matters, in so far as they involve the element of necessity for the taking, are not open to judicial inquiry and determination. Gibson v. Cann, 28 Colo. 499, 66 P. 879; Railroad Co. v. Telegraph Co., 30 Colo. 133, 69 P. 564, 97 Am.St.Rep. 106; Warner v. Town of Gunnison, 2 Colo.App. 431, 31 P. 238.

Their position in this regard is two-fold: first, a canal or ditch has already been constructed as a part of the project, from a point on the creek upstream, traversing in its course higher lands, but through which and the lower end of ditch D the same waters can be conducted to the lands; and, second, there is now a private ditch across defendants' lands through which the waters may be taken and applied as proposed therefore there is no necessity for the upper end of this ditch, and consequently their lands cannot be condemned and taken. Both contentions are based on section 2420 of the State statute, and the construction placed thereon by the courts. Sand...