Weiser Valley Land & Water Co. v. Ryan

• Decision Date: 02 October 1911
• Docket Number: 1,942.
• Citation: 190 F. 417
• Parties: WEISER VALLEY LAND & WATER CO. v. RYAN et al. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

190 F. 417

WEISER VALLEY LAND & WATER CO. v. RYAN et al. ^[1]

No. 1,942.

United States Court of Appeals, Ninth Circuit.

October 2, 1911

Richards & Haga, for plaintiff in error.

Lot L Feltham and Frank D. Ryan, for defendants in error.

Before MORROW, Circuit Judge, and HANFORD and WOLVERTON, District judges.

WOLVERTON District Judge.

The plaintiff in error, which was the plaintiff below, is a corporation engaged in the construction and maintenance of an irrigation project. For the purpose of obtaining a site for a dam and reservoir, plaintiff instituted a suit to condemn the lands of the defendants, consisting of 320 acres, each of them owning 160 acres. The proposed site is situated in Lost Valley, Washington county, Idaho, at an altitude of from 4,000 to 6,000 feet above sea level. Lost river flows through the valley, and passes out through a narrow canyon. The purpose is to construct a dam 80 feet in height across the stream in the canyon, with a view to impounding the surplus waters produced by the melting snowfall within the watershed around about. The valley contains an area of some 500 to 700 acres of meadow land, including the lands of the defendants. This meadow land rises gradually towards the surrounding hills, but an 80-foot dam would cause the water to flow back to such an extent that it would cover, not only the meadow land, with all the land of defendants, except, except possibly, 8 acres, but a large area besides, comprising in all about 1,200 acres. It was estimated that such a reservoir would have a capacity of 60,000 acre-feet, that the water from melting snows would be sufficient to fill it, which would provide irrigation for 20,000 acres of land, and that it is feasible to get the water from the reservoir upon a larger area than that. The defile through which the water passes beyond Lost Valley is of such a nature, with rock walls, that the dam construction could be had at minimum expense, and would be so situated as to be largely free from wave action and erosion.

At the trial G. R. Baker, a civil engineer with large experience in the construction of reservoir and irrigation projects, was called as a witness for the defendants, and testified to the feasibility of constructing the dam and the irrigation canals and ditches contemplated by the plaintiff, and of their practical utility when constructed. Then as follows:

'Assuming that there are lands in Washington county sufficient in area to consume the capacity of this Lost River Basin up to the 52,000 acre-feet, which lands may be irrigated from said water supply at a reasonable amount of expense for the quantity of water furnished, taking into consideration and assuming the natural features of the reservoir as to altitude, topographical features, precipitation as shown by the witnesses in this case, and location for dam facilities, and opportunities of impounding such water, and assuming that there is in said community no established market value for said lands for all purposes for which they are naturally adapted, including reservoir site, assuming that no change has taken place in the topographical features or conditions of said reservoir site since September 4, 1909, I would know the actual value of the lands of the defendants on September 4, 1909, for and in view of all the purposes to which such lands were actually adapted. In my experience I have known of sales made of similar lands like this for reservoir sites. The ones I refer to are located in Colorado.

I know of the actual value of another reservoir of similar proportions, similarly situated, of a similar character, and similarly situated in relation to an arid land district. * * * I know of other reservoir sites, the actual value of which I am familiar with, what we call the 'Marshall Reservoir.' I know of the actual value of other reservoir sites than those I have mentioned. I know of some sites that have been sold. I think I would know the actual value of those reservoir sites, those several reservoirs. I think I would know the actual value of this reservoir referred to as the Lost Basin Reservoir, September 4, 1909, in view of all the facts I have learned concerning it by my own investigation, and in view of the testimony of the witnesses produced in the trial of this case. And, assuming the facts that have been presented to me in former questions as to the precipitation and the presumed conditions, that there are lands in Washington county susceptible of irrigation from this reservoir which as yet have no water placed upon them sufficient to consume all the water in the reservoir up to the quantity figured by me as 56,000 acre-feet, in view of all the purposes to which these lands are naturally adapted.'

At this time the question was asked: 'Now, what in your opinion was the value of those lands at that time? ' (September 4, 1909). Whereupon witness further testified, on cross-examination as to his competency:

'When I speak of the value of a reservoir site, I take into consideration the value of the land upon which the water would be distributed, and that the land would be made productive, or I might take into consideration other features of the reservoir sites, as they might be. It might be that the question of domestic purposes should enter into it to a certain extent, and also there might be power purposes that would enter into it. Of course, the price at which those lands will buy water would enter into it. The cost of the distributing canal to take the water from the reservoir to this land would have to be taken into consideration, and the cost of constructing the reservoir would have to be considered; also, the profits that would be made upon the handling of the proposition. The elements that would enter into the profits would, of course, be the amount of money expended in construction and so on--the total cost and the management and operation.'

Objection being interposed, the court further interrogated, and witness answered:

'I have stated that I could give the market value of this land now; that is, what it would sell for upon the market last September, under the conditions that question was asked. In reaching the conclusion, I consider the reputed price at which they are selling, and the value of the lands, that is, by irrigating, by being irrigated, the value of irrigated and nonirrigated lands, the value of water that is necessary to make the lands productive. Of course, I base it to a great extent upon the price at which water is sold per acre. I base it upon the price at which water is sold with the schemes with which I am familiar. I have an idea what I would pay for those lands last fall, considering the circumstances and the physical conditions that there are there, with reference to the surroundings. From my observations I feel intelligent enough with regard to the situation, to say what I would be willing to pay. I think I would be willing now to make a bona fide offer for those lands. I feel intelligent enough in regard to it to do that, considering conditions there.'

Here the objection was overruled, and witness was permitted to answer:

'I should value those lands last fall at $20,000 a claim; that is, $40,000 for 320 acres.' On cross-examination he further testified:

'I don't know anything about what it would cost to carry water to these lands. I think I could build the dam at the reservoir site for $200,000. I included that in my estimate of the value of these lands. I also included the distribution of the water. I would place it at half a million, that is an arbitrary figure that I have put on it. It wouldn't be just as safe to assume arbitrarily a million as half a million, because I don't think it would cost a million based on my general experience with reference to getting water onto such projects. I don't know anything about the amount of rock work I would have to do, or the earthwork, or the bridges, or the flumes, or the pipe lines or headgates. I don't know anything about those things. I fixed $500,000 as the cost of those canals, because I have never distributed that much water that has cost anywhere that much. That is the only reason I can give. I took into consideration the cost of the dam, at $200,000, and the cost of the distributing works at $500,000, and the sale of the water at $50 per acre, and upon that I base my estimate of $40,000. I also took into consideration the cost of the land in the reservoir; that is, about 1,200 acres of land. I would place the value of that land at $150,000, the value of all the land in the reservoir, so I have $150,000, $200,000, and $500,000-- that makes $850,000. I would figure that 60,000 acre-feet of water would irrigate 20,000 acres of land, and 52,000 acre-feet would irrigate in the neighborhood of 17,000 acres, and I am assuming that there is 17,000 acres of land available at that price--at $50 an acre. It would amount to $850,000. I would now have a plant that cost $850,000, and the selling price would be $850,000. When I said I took into consideration the profits, I didn't make my basis upon 17,000 acres. Taking it on a basis of 52,000 acre-feet and 3 acre-feet to the acre, then my cost and selling price are absolutely equal. There wouldn't be any profit in that that I could see.'

Robert J. Wood, another witness called for defendants, after being qualified as an expert civil engineer with large acquaintance with the construction of irrigation projects, was interrogated as follows:

'In view of all the facts and the information that you have acquired by your own investigation, and the further testimony of witnesses in this trial, and assuming as a fact that there is a quantity of rainfall sufficient to place in that reservoir annually 52,000 acre-feet, taking into consideration a

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