Utah Const. Co. v. Salmon River Canal Co.

• Decision Date: 22 September 1936
• Docket Number: No. 8011.,8011.
• Citation: 85 F.2d 769
• Parties: UTAH CONST. CO. v. SALMON RIVER CANAL CO., Limited.
• Court: U.S. Court of Appeals — Ninth Circuit

85 F.2d 769 (1936)

UTAH CONST. CO. v. SALMON RIVER CANAL CO., Limited.^*

No. 8011.

Circuit Court of Appeals, Ninth Circuit.

September 22, 1936.

Edwin Snow, of Boise, Idaho, and A. E. Bowen, of Salt Lake City, Utah, for appellant.

Frank L. Stephan and J. H. Blandford, both of Twin Falls, Idaho, and Richards & Haga, of Boise, Idaho, for appellee.

Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.

MATHEWS, Circuit Judge.

On March 24, 1916, the District Court entered a decree determining the rights of appellee and the Twin Falls Salmon River Land & Water Company, hereinafter called plaintiffs, and the Vineyard Land & Stock Company, hereinafter called defendant, in the waters of Salmon river, sometimes called Salmon creek, and its tributaries. The decree was affirmed by this court on August 6, 1917. Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 245 F. 9. Thereafter appellee acquired the rights of its coplaintiff, and appellant acquired the rights of defendant. On March 1, 1935, the District Court made an order prescribing rules for the administration and enforcement of the decree. This appeal is from that order.

The decree of March 24, 1916, adjudges and declares that defendant has a right, prior and superior to any right of plaintiffs, to divert and use annually on certain lands, some of which are in Idaho and some in Nevada, 12,500 acre feet of water, which "shall be diverted from the channel of Salmon river or Salmon creek and its tributaries through ditches, canals, or other conduits provided with suitable measuring devices for measuring the amount of water diverted from the channel of such stream"; that, subject to said prior right of defendant, plaintiffs have the right to divert and use on certain lands, all of which are in Idaho, 3,000 cubic feet per second of the waters of Salmon river and its tributaries, to be diverted from Salmon river at the outlet of plaintiffs' reservoir, at or immediately above the Salmon River Dam, provided that such diversion for any one irrigating season shall not exceed 235,000 acre feet, "the same to be measured at said point of diversion"; and that, subject to said right of plaintiffs, defendant has, in addition to its prior right mentioned above, the further right to divert and use annually on certain lands in Nevada 12,000 acre feet of water, to be diverted from Salmon river by means of the High Line or Harrell Canal.

The decree enjoins each of the parties "from using or diverting from the channel of the stream any of the waters of said Salmon river or Salmon creek, or its tributaries, in excess of its several rights as the same are hereinbefore defined, and from diverting or using the water at such time or in such manner or in such amount as will infringe upon any right of the other party, as such right is hereinbefore defined."

The decree provides: "That the plaintiffs install a suitable and efficient automatic measuring and registering device at their point of diversion, and that the devices install uniform measuring devices at the several points where it diverts water from the channel of said Salmon river or Salmon creek and of any of its tributaries; all such devices to be of such design as to automatically register the amount of water diverted. All such measuring devices and gauges shall at all times be subject to the inspection of either party, and no dam or other obstruction to the natural flow of the stream shall be maintained so as to divert water from the channel of the stream, except through ditches, canals or other works provided with such measuring devices, and each of the parties hereto is perpetually enjoined from diverting from the channel of the stream or its tributaries, any water through any ditch, conduit, or other device not provided with such measuring device."

The decree concludes with the statement: "That the court retains jurisdiction to make all reasonable rules touching the manner of diverting, measuring and distributing the water, and the devices to be installed and used for such purposes where it may be impracticable to fully comply with the terms of the decree, and to direct that the parties keep accurate and detailed records of the amounts of water diverted, and to require reports to be filed from time to time of the amount so diverted, and generally to make such orders as may be found reasonably necessary to give effect to the decree, and to appoint commissioners or water masters to make distribution in accordance with its terms, and to punish the parties hereto, their officers, agents and employees, and their grantees and successors in interest, for any violation of the provisions thereof."

The order of March 1, 1935, prescribes rules for the administration and enforcement of the decree and thereby determines substantial rights of the parties. Such an order is a "final decision," within the meaning of section 128 of the Judicial Code (28 U.S.C.A. § 225), and is therefore appealable. Re Farmers' Loan & Trust Company, 129 U.S. 206, 213, 9 S.Ct. 265, 32 L.Ed. 656; Chicago D. & Vincennes R. Co. v. Fosdick, 106 U.S. 47, 83, 27 L.Ed. 47; Blossom v. Milwaukee & Chicago R. Co., 1 Wall. 655, 657, 17 L. Ed. 673.

The order reads: ". . . It is hereby ordered, that in order to properly administer the decree in accordance with the decreed rights of the parties, the following rules are necessary and that the said rules hereinafter set forth be, and they hereby are adopted and promulgated for the guidance of those directed to administer the decree filed in this cause on March 24, 1916, to-wit: . . ." The order sets forth nine rules. Appellant challenges the validity of all except rules 1 and 6.

Rule 2 reads: "The two main channels of Salmon River between certain points and the two main channels of Shoshone Creek¹ between certain points at all times shall remain open and if used by defendant in diverting water from these channels, the water is to be measured."

The decree does not hold, nor does it assume, as this rule does, that Salmon river or Shoshone creek has more than one channel. The decree says nothing about "main channels." It speaks only of "the channel." It does not require or provide that the channel of Salmon river or of Shoshone creek shall remain open. On the contrary, it adjudges and declares that defendant, appellant's predecessor in interest, has the right to divert water from the channel of Salmon river and its tributaries. The only restrictions or limitations on this right are: (1) That such water shall not be diverted except through ditches, canals, or other conduits provided with automatic measuring devices for measuring the amount of water so diverted; and (2) that defendant shall not use or divert water in excess of its rights, as defined in the decree, or at such time or in such manner or in such amount as will infringe upon plaintiffs' rights, as defined in the decree.

Under the decree, appellant, as defendant's successor in interest, has the right to construct and maintain, in the channel of Salmon river or of Shoshone creek, between the points mentioned in the rule, or elsewhere, such dams or diversion works as it may deem necessary for the diversion of water from such channel, subject only to the limitations aforesaid. To that extent, and within those limitations, appellant has the right to obstruct or close the channel of Salmon river or of Shoshone creek. Thus, in requiring these channels to remain open at all times, the rule violates a right established by the decree. The decree is conclusive on the parties, and the rights thereby established are not subject to further inquiry. Baker v. Cummings, 181 U. S. 117, 124, 21 S.Ct. 578, 45 L.Ed. 776; Southern Pacific R. Co. v. United States, 168 U.S. 1, 48, 18 S.Ct. 18, 42 L.Ed. 355. Being inconsistent with the decree, rule 2 is invalid.

Rule 3 reads: "Where it is necessary in the irrigation of defendant's lands or in the use of its decreed water, for it to construct and maintain dams, dikes or other artificial means in any well defined water course, slough or natural water course to raise its decreed water to such a level as to divert its decreed water upon its lands such dams, dikes or other artificial means shall be so constructed and maintained in such manner and at such a height as to allow whatever flood water...