United States v. Union Gap Irr. Co.

• Decision Date: 23 August 1913
• Docket Number: 199.
• Citation: 209 F. 274
• Parties: UNITED STATES v. UNION GAP IRR. CO.
• Court: U.S. District Court — District of Washington

209 F. 274

UNITED STATES v. UNION GAP IRR. CO.

No. 199.

United States District Court, E.D. Washington, Southern Division.

August 23, 1913

Oscar Cain, U.S. Atty., and E. J. Farley, Asst. U.S. Atty., both of Spokane, Wash., and E. W. Burr, Special Asst. U.S. Atty., of North Yakima, Wash., for plaintiff.

Allen &amp Wilson and Henry J. Snively, all of North Yakima, Wash., for defendant.

RUDKIN District Judge.

It appears from the bill of complaint in this case that the plaintiff has examined, surveyed, located, and has now in active operation extensive irrigation works for the storage diversion, and development of water for the reclamation of arid and semiarid lands in Yakima county, under Reclamation Act of June 17, 1902, c. 1093, 32 Stat. 388 (U.S. Comp. St Supp. 1911, p. 662); that the plaintiff has availed itself of the provisions of the act of the Legislature of the state of Washington, entitled, 'An act relating to the appropriation of waters of the state for irrigation purposes granting to the United States the right to exercise the power of eminent domain in acquiring lands, water and other property for rights of way, and for reservoirs and other irrigation works, granting to the United States certain rights in state lands and in the waters of the state relating to water users' associations, and declaring an emergency,' approved March 4, 1905 (Laws of 1905, p. 180), and by virtue thereof did, on the 10th day of May, 1905, appropriate all of the unappropriated waters of the Yakima river, and has appropriated large quantities of water in Yakima county, which are being distributed, stored, and developed; that immediately thereafter the plaintiff began work upon, and now has in operation, in process of construction and in contemplation, irrigation projects which, when completed, will require all of the waters of the Yakima river so appropriated for irrigation purposes, which projects will be completed as rapidly as the lands under them can be prepared for irrigation; that on the 25th day of November, 1905, the plaintiff and the Fowler Ditch Company entered into a certain contract whereby the ditch company relinquished to the plaintiff all its rights in and to the waters then claimed and owned by it in the Yakima river, save and except 23 cubic feet per second during the months from April to August, inclusive, of each year, 16 cubic feet per second during the month of September of each year, and 12 cubic feet per second during the month of October of each year; that the defendant herein, prior to the 23d day of May, 1906, succeeded to all the right, title, and interest of the Fowler Ditch Company in and to the waters reserved by the foregoing contract; and on said last-mentioned date the plaintiff and the defendant entered into a further contract, whereby the defendant surrendered, yielded up, and abandoned all claims and rights to any waters in the Yakima basin save and except 28 cubic feet per second during the months from April to August of each year, 19 cubic feet per second during the month of September of each year, and 14 cubic feet per second during the month of October of each year, in addition to the amounts reserved to the Fowler Ditch Company under the contract first above mentioned; that, notwithstanding the terms and conditions of the foregoing contracts, the defendant has heretofore appropriated, diverted, and used large quantities of water in excess of the amounts to which it is entitled, and thereby entailed great damages upon the plaintiff, and threatens to continue so to do; that if such diversion is continued, great and irreparable damage and injury will ensue to the plaintiff, in that a vast number of acres of arid and semiarid land in Yakima county are being furnished by plaintiff with water from the Yakima river for irrigation, domestic, and other, purposes, by reason whereof said lands, which without water are valueless, have been rendered highly productive, and support and maintain a large number of people; that no other source of water supply exists; that plaintiff has entered into contracts to so furnish water to a large number of persons, which is constantly increasing; that the amount of water available to the plaintiff, exclusive of the amounts to which the defendant is justly entitled to use under the foregoing contracts, is no more than sufficient to supply the water which the plaintiff has obligated itself to deliver; that if the defendant diverts and uses more than its share of water, as aforesaid, the plaintiff's supply of water will be diminished to such an extent that it will be unable to fulfill its obligations, and will be prevented from furnishing such persons with water in sufficient quantities to...