Warm Springs Irr. Dist. v. Pacific Live Stock Co.

• Decision Date: 07 February 1921
• Docket Number: 3602.
• Citation: 270 F. 560
• Parties: WARM SPRINGS IRR. DIST. et al. v. PACIFIC LIVE STOCK CO.
• Court: U.S. Court of Appeals — Ninth Circuit

270 F. 560

WARM SPRINGS IRR. DIST. et al. v. PACIFIC LIVE STOCK CO.

No. 3602.

United States Court of Appeals, Ninth Circuit.

February 7, 1921

On January 30, 1920, the appellee filed in the court below its bill against the appellants setting forth the judgment that had been entered in the same court on November 22, 1919, in the condemnation suit brought by the Warm Springs irrigation district, which judgment on writ of error this court has just reviewed (270 F. 555), and alleging that the right acquired by the irrigation district in said suit was an easement only over said land, and that the judgment gave the district no right or title to the property other than the right to flood the same for reservoir purposes, whereas the said district claimed to own all the improvements on said land and the fee-simple title thereto, and the right to demise and lease said land. The appellee alleged further that the appellants were about to remove said improvements and to use the premises for their own use and benefit; that during a large part of the year a considerable portion of said land will not be flooded by the waters of the reservoir and a large amount of valuable feed and pasture will grow thereon which can be used by the appellee without interfering with the easement of the irrigation district. The answer of the appellants put in issue the claim of the appellee to rights in the premises and alleged that the judgment in the condemnation suit gave to the irrigation district all the lands described therein in fee simple, and that the district in the exercise of that right had leased to the appellant Stanfield the lands lying above the water line of the reservoir. The court below sustained the appellee's contention as to the construction to be placed on the judgment in the condemnation suit and granted an injunction as prayed for.

Ed. R Coulter, of Weiser, Idaho, H. C. Eastham, of stham, of Vale Or., and Allen H. McCurtain and Thomas G. Greene, both of Portland, Or., for appellants.

W. H Brooke and P. J. Gallagher, both of Ontario, Or., and Edward F. Treadwell, of San Francisco, Cal., for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The appeal presents the single question whether the condemnation of the appellee's lands for a reservoir site and the payment of the sum adjudged to be due it therefor has given to the irrigation district an absolute title to the property or only an easement. The condemnation proceedings upon the payment into court of the damages assessed "the court shall give judgment appropriating the land, properties, rights, easements," etc., "to the corporation, and thereafter the same shall be the property of such corporation." The act approved February 21, 1917 (Olson's Oregon Laws, Sec. 7335), declares that an irrigation district created under the laws of the state shall have--

'the right to acquire, either by lease, purchase, condemnation, or other legal means, all lands and waters and water rights, rights of way, easements and other property, including canals and works * * * constructed and being constructed by private owners, necessary for the construction, use, supply, maintenance, repair and improvement of any canal or canals and works proposed to be constructed by said board, and shall also have the right to so acquire lands, and all necessary appurtenances for reservoirs, and the right to store water in constructed reservoirs, for the storage of needful waters, or for any other purposes reasonably necessary for the purposes of said district.'

Such statutes...