United States v. Ramshorn Ditch Co.

• Decision Date: 20 December 1918
• Citation: 254 F. 842
• Parties: UNITED STATES v. RAMSHORN DITCH CO. et al.
• Court: U.S. District Court — District of Nebraska

254 F. 842

UNITED STATES v. RAMSHORN DITCH CO. et al.

United States District Court, D. Nebraska, North Platte Division.

December 20, 1918

Ethelbert Ward, Sp. Asst. U.S. Atty. Gen., of Denver, Colo A. R. Honnold, Dist. Counsel, U.S. Reclamation Service, of Scottsbluff, Neb., and T. S. Allen, U.S. Dist. Atty., of Lincoln, Neb.

Morrow & Morrow and Fred. A. Wright, all of Scottsbluff, Neb Willis E. Reed, Atty. Gen. Neb., Charles S. Roe, Deputy Atty Gen. Neb., and George W. Ayres, Asst. Atty. Gen. Neb., all of Lincoln, Neb., for defendants.

LEWIS District Judge.

This suit was brought to determine whether the defendant, the Ramshorn Ditch Company, had and has the right, as it claims, to divert and apply to irrigation forty-five and four-sevenths second feet of water, or any part thereof, flowing in a ditch or canal constructed by, in the possession and under the control of the plaintiff. All of the defendants, other than the Ramshorn Ditch Company, are State and Water Division and Water District officials who have to do under the State statute with the distribution of water for irrigation between different claimants thereto. The complaint alleges that the Ditch Company has not that claimed right, and prays for injunctive relief.

The facts are these: The plaintiff constructed, maintains and operates a large irrigation system in the valley of the North Platte, a part of which is in and covers lands lying in Wyoming, and the remainder is in this State. Its acts in this respect were authorized by the Reclamation Act approved June 17, 1902 (32 Stat. 388, c. 1093 (Comp. St. Secs. 4700-4708)), and the so-called Warren Act approved February 21, 1911 (36 Stat. 925, c. 141 (Comp. St. Secs. 4738--4740)). The dam constructed by the plaintiff to impound the flood waters of the North Platte is in the State of Wyoming, and has a capacity of something more than one million acre feet, which expressed otherwise, in cubic contents, signifies a body of water twenty miles long, one and a quarter miles wide, and sixty-four feet deep. As this storage water is released it is permitted to flow down the river to the head gates of large canals on both sides, into which it is taken and carried to the vicinity of lands to be irrigated in both States, from which it is then taken into laterals and delivered to landowners who distribute it over their lands in ditches made for that purpose. The canal with which we are now concerned has a capacity, in Wyoming, of sixteen hundred feet, which gradually becomes less as it extends eastward into this State. It is known as the Interstate Canal. It is taken out of the Platte River on its northerly side in Wyoming about thirty miles west of the State line, and its total length in the two States is one hundred and eighty miles. The laterals constructed by plaintiff have a total length of eight hundred miles. In addition to the lands in Wyoming to be irrigated by the waters in this canal it was contemplated and believed that more than one hundred thousand acres in Nebraska could also be irrigated, consisting of about eighty thousand acres of Government lands, ten thousand acres of State lands, the remainder, lands in private ownership. The territory to be furnished by the canal on the south side of the river is not so extensive, but the project in its entirety is a very large one, and has required several million dollars in its construction and development. The Interstate Canal crosses the State line about the westerly edge of Sheep Creek Valley, and then runs almost due north about five miles before crossing that Creek, thence in a southeasterly direction, and again loops north around the main valley of Dry Sheep Creek. The distance thus covered by the canal as it traverses the two valleys is about twenty miles, so that water escaping in any manner from the canal in that distance would naturally tend to pass down into the troughs in those valleys by surface flow or seepage, the strata underlying the soil in that country being sand or gravel. Water from the canal was first applied in this State in 1908, and in 1909 forty-eight thousand acres of growing crops were furnished water under the canal in this State. The lands in the two valleys were irrigated from this source.

Following the trough of Sheep Creek Valley in its course a little to the east of south the distance from the loop of the canal around it to the Platte River is about twenty miles. Dry Sheep Creek Valley, which runs more directly south, comes in to Sheep Creek Valley some four or five miles from the river. There is no evidence that there was ever any natural flow of water in Dry Sheep Creek. In the early days, and up to some twenty years ago, there was a small flowing stream in the upper part of Sheep Creek, but at no time did it reach the river on the surface. Its visible flow accumulated in what are called sinks, just above the sand hills or mounds which lay across the valley about a third of the way down it from the loop of the canal. Below the sand hills and on to the river there was no natural channel. The country there was grassed over. The sinks and the small stream above flowing into them were utilized in the early days by stockmen as watering places, but the flow, and the water in the sinks, gradually grew less and began to disappear several years before the canal was constructed, and stockmen resorted to the sinking of wells, both above and below the sinks, and in this way found water for their cattle. A year or so after water was turned into the canal, and lands in the two valleys were begun to be irrigated, wet places in the two valleys appeared upon the surface. This condition increased from year to year until large pools or small lakes were formed both above and below the sand hills, and these accumulating waters, as they increased, began to form connecting channels and to cut a way in which to flow downward toward the river. This condition of course rendered much of the land which had been irrigable in the two valleys unfit for cultivation. It became marshy and increasingly saturated. Thereupon the plaintiff, at an expense of about $45,000.00, constructed ditches in Sheep Creek Valley, both above and below the sand hills, and thus brought the saturating waters into a common channel directed toward the river. It first turned the waters into a privately owned irrigating ditch, and they were thus carried to the river. Later they increased in volume and spread over the country below. A drainage district was organized to receive the waters from the ditch constructed in the valley by the plaintiff, and it carried them direct to the river, the plaintiff bearing a part of the expense of the drainage ditch. By series of contracts, made in 1912 and 1915, between the plaintiff and the owners of the Farmers' Ditch, the plaintiff obtained the asserted right to turn these waters into the Farmers' Ditch and to use them in irrigating lands under that ditch, and extensions of it to be made, on contracts with landowners, which it claimed the right to make and fulfill by virtue of the Warren Act. For that purpose it constructed concrete Diversion Works at a cost to it of $1450.00, and thus diverted the water in June, 1914, from its ditch into the Farmers' Ditch, and continued to do so during each irrigation season thereafter up to July 21, 1917, on which day the local Water Commissioner, at the direction of the State Engineer, his superior, came upon the»Diversion Works and cut the water out of the Farmers' Ditch, turned it into the District Drainage Ditch, and posted written notices thereat, signed in his official capacity as Water Commissioner, warning the U.S. Reclamation Service and its officers, particularly its Project Manager, that in accordance with the provisions of the Irrigation Laws of the State of Nebraska the head gate of that diversion into the Farmers' Ditch had been opened (closed) 'for the purpose of delivering water to appropriation 1465' (Ramshorn Canal Company), and that the head gate must not be opened or interfered with until permission should be received from some officer of the State Board of Irrigation, Highways and Drainage. The Ramshorn Canal was below the Farmers'. It crosses the District Drainage Ditch; and as the water thus turned into the District Drainage Ditch by the Water Commissioner came down to the point of crossing it was turned in to the Ramshorn Canal and used for the irrigation of lands under it.

The Interstate Canal carries about twelve hundred second feet of water where it reaches Sheep Creek, and the evidence leads to the conclusion that the loss from the canal by seepage in the twenty miles around the heads of the two Sheep Creeks is from thirty-eight to forty second feet, and that the loss in the irrigation laterals under the canal in the same vicinity is about forty second feet. In addition, the amount of seepage in the two valleys was increased by irrigation, but there is no testimony from which that can be approximately estimated. The flow in the ditch constructed by the Government varies from thirty-five to eighty second feet at the Diversion Works. Ordinarily it amounts to about forty to fifty second feet. The plaintiff did nothing in the way of draining the seeped lands in Dry Sheep Creek Valley. That work was done by private landowners, and the flow in plaintiff's ditch above the Diversion Works is considerably augmented from that source.

Section 8 of the Reclamation Act accepts the requirements of local laws 'relating to the control, appropriation, use or distribution of water used in irrigation,' and it requires that 'the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws.'

The State Constitution has no provision relating to the...