Wattson v. United States

• Decision Date: 08 September 1919
• Docket Number: 3260.
• Citation: 260 F. 506
• Parties: WATTSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

260 F. 506

WATTSON et al. v. UNITED STATES.

No. 3260.

United States Court of Appeals, Ninth Circuit.

September 8, 1919

Haas &amp Dunnigan, of Los Angeles, Cal., and Wright & Darnell, of Tucson, Ariz., for appellants.

Thomas A. Flynn, U.S. Atty., and John H. Langston, Asst. U.S. Atty both of Phoenix, Ariz.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge.

This is an appeal to reverse a decree enjoining defendants from diverting or using any water flowing in a drainage canal of drainage district No. 1, Maricopa county, Ariz., and from interfering with the unobstructed flow of the waters in the canal.

The United States owned lands in the Gila River Indian reservation in Arizona. Drainage district No. 1, Maricopa county, Ariz., was organized in October, 1914, under the laws of Arizona. Chapter 5, title 55, pars. 5427-5509, Civil Code of Arizona, 1913. It is alleged that during February, 1916 the district began the construction of a drainage canal near a described point in Maricopa county, and continued the construction in a direction through the lands of the defendants; that the canal was completed about May, 1917 that from the time of the beginning of construction water began to accumulate in and flow in the drainage canal upon the lands of plaintiff, and that the canal was built through the lands of defendants during June and July, 1916; that prior to June and July the district bought from the defendants and their predecessors in interest a right of way for the canal across the lands of the defendants; that such conveyances transferred title in fee for such rights of way for drainage; that the district was constructed to drain surplus overflow and percolated waters from the described lands of the defendants, and other lands owned by persons above and below the lands of the defendants; that by the laws of Arizona, heretofore cited, all the waters located in and controlled by means of the drainage canal constructed by the district were dedicated and set apart to the uses and purposes of the drainage district and that upon commencement of the construction, the drainage canal vested in the drainage district. Plaintiff further alleged that in September, 1917, the United States contracted with drainage district No. 1 and purchased and became the owner of all the water collected in, controlled, or handled by means of the drainage canal in district No. 1; that the lands of the United States were arid, and are occupied by the Pima Indians, and that some 2,500 acres have been leased; that about June, 1917, the occupants of the lands began to build ditches to convey the waters described from the drainage canal from the district to and upon the lands for purposes of irrigation, and have irrigated many acres and planted crops and used all the waters collected in the drainage canal for irrigation; that about May 1, 1918, the defendants Wattson and Spicer diverted certain of the waters flowing in the drainage canal described, and that all the land owned by the defendants and upon which the water so diverted from the drainage canal was used, is within and a part of drainage district No. 1.

The agreement between the drainage district and the United States, acting through the commissioner of Indian Affairs, after reciting that the district has constructed and is now operating a drain ditch for the purpose of draining the excess ground water from the agricultural land within the district, and that the outflow of the drain ditch is being maintained across certain lands in the Gila River Indian reservation, sets forth that whereas the District desires to secure from the United States a right in perpetuity to maintain and operate a drain ditch across the lands mentioned, with a right in perpetuity to discharge the waters collected by the drain ditch as then and thereafter constructed, and to be released from all liabilities which may arise by reason of construction and operation of the ditch across the Indian Reservation, and whereas the United States desires to control the use for irrigation of all water collected by the drain ditch, it is agreed that the district grant to the United States the right to the use of the water collected by means of the drain ditch and drainage work upon the condition that the United States will not obstruct the discharge and outflow of water from the end of the ditch at a point described in the contract. In consideration for this grant the United States granted and conveyed to the district a right of way across certain lands in the Indian reservation on which to maintain and operate the said drain ditch, and agreed to release the district from liability by reason of the construction of the drain ditch within the reservation without having obtained the necessary authority.

Defendants answered that since May 1, 1917, they had diverted water from the drainage canal, and pleaded that on the 9th of February, 1917, they filed notice of appropriation for 200 inches of the waters diverted by the drainage ditch, and again on April 20, 1917, also appropriated, pursuant to paragraphs 5837 and 5838 of the Revised Statutes of 1913 of Arizona, and claimed 200 inches additional, and used the waters for irrigation upon the lands belonging to the defendants. Defendants deny all obstruction of use by the United States.

At the hearing before the court it...