Utah Power & Light Co. v. United States

• Decision Date: 24 November 1915
• Docket Number: 4506,4507.
• Parties: UTAH POWER & LIGHT CO. v. UNITED STATES. UNITED STATES v. UTAH POWER & LIGHT CO.
• Court: U.S. Court of Appeals — Eighth Circuit

230 F. 328

UTAH POWER & LIGHT CO. v. UNITED STATES.

UNITED STATES v. UTAH POWER & LIGHT CO.

Nos. 4506, 4507.

United States Court of Appeals, Eighth Circuit.

November 24, 1915

William W. Ray, U.S. Atty., of Salt Lake City, Utah, and J. F Lawson, Asst. Sol. for Department of Agriculture, of Ogden Utah, for the United States.

Graham Sumner, of New York City (R. A. Wilbur, of Salt Lake City Utah, on the brief), for the defendant.

Before CARLAND, Circuit Judge, and AMIDON and VAN VALKENBURGH District Judges.

VAN VALKENBURGH, District Judge.

This case comes before us for the second time. The United States brought its bill of complaint against the Utah Power & Light Company, defendant below, by which it sought 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, and also prayed that the defendant be compelled to account for and make corresponding pecuniary payment therefor to the plaintiff.

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. Appellee claimed to have acquired whatever rights it possessed 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 (14 Stat. 253, c. 262), appearing as section 2339 of the Revised Statutes (U.S. Comp. St. 1913, Sec. 4647). In opposition to this the government claimed that 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. The legislation referred to is that of May 14, 1896 (29 Stat. 120, c. 179 (U.S. Comp. St. 1913, Sec. 4944)). A motion to dismiss, substituted under the new equity rules for demurrer, was filed by appellee. This motion was sustained by the trial court, which entered a decree dismissing the bill. 208 F. 821. Upon appeal, the decree below was reversed and the case was remanded for further proceedings in accordance with the views expressed in the opinion of this court. 209 F. 554, 126 C.C.A. 376. Thereupon, in the district court, the defendant filed an answer denying some of the allegations of the bill of complaint, and alleging new matter which it conceived to disclose an equitable defense. The government interposed a motion to strike this answer from the files, and for a decree against the defendant upon the ground that the answer and each separate defense stated therein were insufficient in law. This motion was sustained. Title to the lands in question was adjudged and decreed to be quieted and confirmed in the United States as against all claims, demands and contentions of the defendant. From this decree the defendant below appeals. The trial court, however, refused to decree an accounting and damages, as prayed for in the bill, and from this action the government has taken a cross-appeal.

Counsel for the Utah Power & Light Company, which, for convenience, will hereinafter be designated as the defendant, now contend:

(1) That whatever may have been the effect of the act of 1896, upon the law theretofore existing, nevertheless the act of 1898, superseded the act of 1896 and reinstated sections 2339 and 2340 of the Revised Statutes (Comp. St. 1913, Secs. 4647, 4648) with respect to rights of ways for canals and reservoirs for the generation of electric power.

(2) That defendant's predecessors acquired an express grant of rights of way for the reservoir and flume or conduit under section 4 of the act of 1905 (Comp. St. 1913, Sec. 4947).

(3) That the land of the plaintiff (United States of America) within the state of Utah is subject to the laws of that state, and its power of eminent domain to take and use property for a public purpose; that the laws of the state of Utah authorized the defendant and its predecessors to construct and maintain the reservoir and flume or conduit upon the plaintiff's land for a public purpose, and the federal Congress had no power by the act of 1896, or any other act, to withdraw its land from the operation of such laws or to prevent the construction or maintenance of such reservoir, flume or conduit.

(4) That new facts alleged in the answer constitute a defense in the nature of equitable estoppel against the plaintiff.

Defendant also reasserts that the act of Congress of 1896 was not intended to supersede or modify sections 2339 and 2340 of the Revised Statutes, nor displace the laws of the state of Utah, nor prevent the construction or maintenance of reservoirs or water conduits upon the public land. Counsel announced, however, that they would not reargue, on this appeal, any points decided on the former appeal, and inasmuch as we are satisfied with the conclusions there reached, neither time nor space will be consumed in unnecessary re-statement of the views heretofore announced. A fuller discussion of the facts and principles involved in the issues presented on the last appeal will be found in the reported opinion above cited. The points now urged by defendant will be considered in the order of their statement.

1. That the act of May 11, 1898, superseded the act of 1896 and reinstated sections 2339 and 2340 with respect to rights of way for canals and reservoirs for the generation of electric power. This act of 1898 provided that the act entitled 'An act to amend an act to permit the use of the right of way through public lands for tramroads, canals, and reservoirs, and for other purposes,' approved January 21, 1895, be amended by adding thereto the following two sections:

'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 upon the public lands of the United States, not within the limits of any park, forest, military, or Indian reservations, for tramways, canals, or reservoirs, to the extent of the ground occupied by the water of the canals and reservoirs, and fifty feet on each side of the marginal limits thereof, or fifty feet on each side of the center line of the tramroad, by any citizen or association of citizens of the United States, for the purposes of furnishing water for domestic, public, and other beneficial uses. (Comp. St. 1913, Sec. 4943.)

'Sec. 2. That the rights of way for ditches, canals, or reservoirs heretofore or hereafter approved under the provisions of sections eighteen, nineteen, twenty, and twenty-one of the act entitled 'An act to repeal timber-culture laws, and for other purposes,' approved March third, eighteen hundred and ninety-one, may be used for purposes of a public nature; and said rights of way may be used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation. ' 30 Stat. 404 (Comp. St. 1913, Sec. 4938).

It will be observed that the first of these sections affects only lands not within the limits of any park, forest, military, or Indian reservations. It authorizes a mere permission by the Secretary of the Interior, and obviously adds nothing to the power conferred by the act of 1896, which, in express terms, permits rights of way for the purposes of generating, manufacturing or distributing electric power. The second section is, in effect, amendatory of the act of 1891. That act, confessedly, was restricted to purposes of irrigation and dealt only with rights of way over the public lands to be used for such purposes. It was uniformly held that locations under it could not be approved where it appeared that the right of way was desired for any other purpose than irrigation, and, by its terms, the grant was limited 'to any canal or ditch company formed for the purpose of irrigation. ' 18 L.D. 573; 20 L.D. 154; 21 L.D. 63; 28 L.D. 474-476. In the latter decision, Mr. Justice Van Devanter, then Assistant Attorney General to the Secretary of the Interior, rendered an opinion in which he says:

'The act of May 11, 1898, purports to be an amendment of the act of 1895, and section 1 relates only to the public lands not within the limits of any reservation. Section 2 is in effect amendatory of the act of 1891, and relates to all lands coming within the purview of that act, which embraced both public lands and reservations of the United States. It provides that the rights of way granted under the act of 1891 may be used for purposes of a public nature and for water transportation, domestic purposes and for the development of power. This section does not purport to make any new grant, but simply permits the rights of way granted by the act of 1891 to be used for other purposes than that of irrigation. No new class of grantees is described in this section, and to determine who may be entitled to a right of way it is necessary to turn to the act of 1891. There the grantees are described as 'any canal or ditch

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