United States v. Utah Power & Light Co.

• Decision Date: 14 November 1913
• Docket Number: 3,992.
• Citation: 209 F. 554
• Parties: UNITED STATES v. UTAH POWER & LIGHT CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

209 F. 554

UNITED STATES v. UTAH POWER & LIGHT CO. ^[1]

No. 3,992.

United States Court of Appeals, Eighth Circuit.

November 14, 1913

R. F Feagans, Assistant Solicitor Department of Agriculture, of Ogden, Utah, and Hiram E. Booth, U.S. Atty., of Salt Lake City, Utah (William M. McCrea, Asst. U.S. Atty., of Salt Lake City, Utah, on the brief), for the United States.

Dwight W. Morrow, of New York City, and E. M. Allison, Jr., of Salt Lake City, Utah (S. A. Bailey, of Salt Lake City, Utah, Clyde C. Dawson, of Denver, Colo., and Waldemar Van Cott and W. D Riter, both of Salt Lake City, Utah, on the brief), for appellee.

William V. Hodges, of Denver, Colo. (Mason A. Lewis, of Denver Colo., on the brief), amicus curiae.

Before HOOK and CARLAND, Circuit Judges, and VAN VALKENBURGH, District judge.

VAN VALKENBURGH, District Judge.

The United States brings its bill of complaint against the appellee, defendant below, by which it seeks perpetually to enjoin said defendant from maintaining, in whole or in part an alleged unlawful and tortious possession and occupancy of certain public lands in Cache county, state of Utah, now forming a part of the Cache National Forest.

Appellee is a corporation organized for the purpose of supplying electrical power to all who may desire to purchase and use it. Since December, 1900, it, and its predecessor in interest, have been engaged in the continuous operation of certain hydro-electrical power works, situated on the Logan river in the county and state aforesaid. These works comprise a reservoir and a flume or conduit for conveying the flow of water from the reservoir to the power works, pressure pipes, and power house station, all equipped with the necessary machinery and apparatus. The reservoir, flume, and conduit are situated wholly upon and within the lands of the United States.

It is alleged in the bill that the defendant power company holds no permission for the construction, maintenance, or use of said reservoir, flume, or conduit, nor any permission or authority to occupy or use said lands for the purposes stated from the United States or from any of its officers duly empowered by law to issue or grant the same; this, of course, stands admitted. Appellee claims to have acquired whatever rights it possesses under and by virtue of the customs, laws, and decisions of the state of Utah, as recognized and confirmed by section 9 of the act of Congress of July 26, 1866, appearing as section 2339 of the Revised Statutes (U.S. Comp. St. 1901, p. 1437) as follows:

'Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, that whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage 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.'

The government claims: (1) That rights of way for power companies cannot be acquired under this act, because such companies and their purposes were not contemplated by Congress at the time of the enactment of these laws, and were not, therefore, within the intent and meaning of those acts. (2) That in any event Congress has since made specific and comprehensive provisions defining the procedure by which, and the extent to which, the use of the public lands may be granted and acquired for the purposes of generating, manufacturing, and distributing electric power; that this legislation withdraws such uses from the terms of section 2339 of the Revised Statutes, if they were ever included therein. The legislation referred to is that of May 14, 1896, c. 179, 29 Stat. 120 (U.S. Comp. St. 1901, p. 1573), which reads as follows:

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the act entitled 'An act to permit the use of the right of way through the public lands for tramroads, canals, and reservoirs, and for other purposes,' approved January twenty-first, eighteen hundred and ninety-five, be, and the same is hereby, amended by adding thereto the following:

'Sec. 2. That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of right of way to the extent of twenty-five feet, together with the use of necessary ground, not exceeding forty acres, upon the public lands and forest reservations of the United States, by any citizen or association of citizens of the United States, for the purposes of generating, manufacturing, or distributing electric power.'

The government's position is that this act, of subsequent adoption, making specific and comprehensive regulations respecting a subject conceived to be embraced within the terms of the prior more general act, withdraws that subject from the operation of the former act to the extent to which it is governed by the special provision and is pro tanto a substitute for the general statute formerly governing the subject-matter. Under the authority of this act, the Secretary of the Interior fixed and promulgated general regulations; and it is contended that since that time, as against the United States, no rights could be acquired in the public lands for purposes of generating, manufacturing or distributing electric power except in conformity with the act of 1896 and the procedure thus established. The exclusive control of Congress over the disposition of the public lands is asserted. The alleged rights of appellee were attempted to be created since the passage of the act of 1896, and the regulations promulgated thereunder, to wit, in December, 1900.

A motion to dismiss, substituted under the new equity rules for demurrer, was filed by appellee. The court below, being of opinion that the defendant had title to a right of way for its pipe lines and reservoirs under section 9 of the act of July 26, 1866, and was therefore under no obligation to proceed under the subsequent legislation, sustained this motion and dismissed the bill.

It is suggested, rather than insisted, that appellant is not entitled to equitable relief because its remedy at law is complete and adequate. This point, though raised in the briefs for appellee, was not urged at the oral argument. While ejectment would seem to afford adequate relief, nevertheless the proceeding in equity has been recognized and approved. United States v. Brighton Ranche Co. (C.C.) 26 F. 218; Light v. United States, 220 U.S. 523, 31 Sup.Ct. 483, 55 L.Ed. 570. However, we agree with the trial judge that under the new equity rules the objection, if well taken, does not justify a dismissal, and that the question therefore need not be determined.

From the briefs the claim of right asserted by appellee would seem to be twofold in its nature: First. That the power company is entitled to be maintained and protected, so long as it may desire, in the use of rights of way over the public land, which it claims to have acquired for the purpose of putting water to a beneficial use under the customs, laws and decisions of the state of Utah, as recognized and confirmed by section 9 of the act of Congress of July 26, 1866, Revised Statutes U.S. sec. 2339; that by said act and by the construction and use of its reservoir and flume, it has permission of the highest and most solemn kind from the United States government to occupy the land in question. Second. That it is protected in its tenure because that tenure is authorized by the laws of the state of Utah, exercising sovereign and exclusive jurisdiction with respect thereto.

The proposition that absolute and perpetual rights in the public lands may be acquired for private gain by mere appropriation, without purchase or compensation, and in the exercise of a state sovereignty which transcends the constitutional power of the Congress, is a somewhat startling one, and must be considered first. The Constitution of the United States (article 4, Sec. 3) provides that:

'Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or the property belonging to the United States.'

This is the supreme law of the land and embodies an express grant of power to the national government. Light v. United States, 220 U.S. 537, 31 Sup.Ct. 483, 55 L.Ed. 570; Kansas v. Colorado, 206 U.S. 89, 27 Sup.Ct. 655, 51 L.Ed. 956. It has been construed to mean that title and rights in and to the public lands are created by the acts of Congress, and must be governed by their provisions whether they be hard or lenient, and that no rights whatsoever can be obtained in the lands of the United States except as Congress may consent. Rector v. Ashley, 6 Wall. 142, 18 L.Ed. 733; Frisbie v. Whitney, 9 Wall. 187, 19 L.Ed. 668; Emblem v. Lincoln Land Co., 184 U.S. 660, 22 Sup.Ct. 523, 46 L.Ed. 736; Wilcox v. Jackson, 13 Pet. 498, 10 L.Ed. 264; Jourdan v. Barrett, 4 How. 169, 11 L.Ed. 924; United States v. Chicago, 7 How. 185, 12 L.Ed. 660; Butte City Water Co. v. Baker, 196 U.S. 119, 25 Sup.Ct. 211, 49 L.Ed. 409; Kansas v. Colorado, 206 U.S. 46-92, 27 Sup.Ct. 655, 51 L.Ed. 956; Light v. United States, supra. After quoting this provision of the Constitution, the Supreme Court, in Jourdan v. Barrett, 4 How.at page 184, 11 L.Ed. 924, said:

'For the disposal of public

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