West Side Irr. Co. v. United States

• Decision Date: 15 October 1917
• Docket Number: 2866.
• Citation: 246 F. 212
• Parties: WEST SIDE IRR. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

246 F. 212

WEST SIDE IRR. CO. v. UNITED STATES.

No. 2866.

United States Court of Appeals, Ninth Circuit.

October 15, 1917

H. J Snively, of North Yakima, Wash., for appellant.

Francis A. Garrecht, U.S. Atty., of Spokane, Wash., and E. W. Burr Sp. Asst. U.S. Atty., of North Yakima, Wash.

The appellant is a corporation organized in the year 1889, under the laws of the territory of Washington, to construct and maintain a canal for the purpose of conveying water from the Yakima river and distributing the same for the use and benefit of its stockholders, who are farmers. It appeals from a decree of the court below which enjoined it from diverting by means of its canal more than 80 cubic feet per second of the water of the river. The suit was brought to enforce the terms of a contract executed by the appellant on October 21 1905, which provides as follows:

'Whereas, the Reclamation Service of the United States has been requested to investigate the water resources of the Yakima watershed with a view to the further development and increase of irrigation therein, under the provisions of the act of Congress approved June 17, 1902 (32 Stat. 388), known as the Reclamation Act, and whereas the officers of the Reclamation Service in preliminary investigation have found that in all the low-water flow of the Yakima river and its tributaries has been appropriated and is now being diverted by the various canals within said watershed and that in order to irrigate additional lands within said watershed it will be necessary to store the surplus waters of the flood season, and whereas, no irrigation project to be undertaken by the United States within the said watershed can be recommended as feasible unless the quantity of water to which each present user from the Yakima river and its tributaries is entitled be first definitely ascertained and agreed to; and whereas, the undersigned claim certain quantities of water from the Yakima river and its tributaries and are willing to limit their claim to the said waters to the quantities of water designated in the following schedule:

'Schedule. Cubic Feet per Second. April to August, inclusive, 80. September, 80. October, 34.

'Now, therefore, in order to avoid litigation, to encourage the storage of water in the Yakima watershed and to secure the indirect benefit derived from further irrigation through federal enterprise, each subscriber to this agreement or to a copy thereof, differing only as to the quantities of water specified, agreed to limit and does limit its respective rights of appropriation from said Yakima river and its tributaries to the above-specified amounts, provided, that it is hereby understood and agreed that the limitation of water rights as herein specified is made as a compromise, in order to secure the benefits above referred to and shall not bind any party hereto in any event, unless the determination to construct storage and irrigation works by the United States under the Reclamation Act shall be announced by the Secretary of the Interior within two years from the date upon which he is furnished with properly authenticated copies of the agreements of this form duly executed by or on behalf of such proportion of the claimants of the waters of the Yakima river and its tributaries as shall be satisfactory to the Secretary of the Interior. In witness whereof, the undersigned has caused these presents to be executed in its corporate name, by its president, and attested by its secretary, and its corporate seal to be affixed, by authority of its board of directors, heretofore duly made and entered this 21st day of October, 1905.

'The West Side Irrigation Company.

'By Mitchell Stevens, Vice President.'

The appellant answered, admitting the execution of the contract, but alleging that it was not intended to be, and was not, a relinquishment of any of the rights of the appellant's stockholders, and was not executed for the purpose of prejudicing the right to water which was being beneficially applied to the irrigation of the lands of the shareholders; that it was the intention of the officers of the appellant in making the agreement to place the amount of water claimed by the shareholders in the amount which the lands of the shareholders required for successful irrigation, and it was not the intention that they should be deprived of that right; that the agreement was signed with the understanding that the rule which the appellant had theretofore employed in measuring and delivering water to its stockholders should apply, and that the appellant then had no knowledge as to the amount of water which was necessary to divert from the river in order to supply the full amount of water to which its shareholders were entitled at the point of use; but the sole knowledge they had was their custom of measuring and delivering the water at the points of use; that according to their custom the water which was necessary to supply the stockholders was one inch of water per second of time per acre, measured under a five-inch pressure at the point of delivery to the land.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

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

The appellant was one of a large number of the users and appropriators of the waters of the Yakima river who executed like contracts at the same time, and under similar circumstances. At the time when the Reclamation Service promulgated a scheme to increase largely the supply of water of the Yakima river for irrigation purposes, more than all the natural flow of the river during the irrigation season had been covered by appropriations. It was not the purpose of the Reclamation Service to use any of the natural flow of the river. It was the intention to construct storage works for the purpose of impounding the surplus water of the winter months and distribute it during the irrigation season. To do this it was necessary to know the amount of the natural flow and to determine and specify just what proportion each appropriator had the right to use. At that time litigation was pending between rival appropriators. The Reclamation Service sought to adjust all differences and induce all appropriators to enter into an agreement whereby the amount of water that each should divert from the river should be definitely determined and recorded. Public meetings were called for that purpose, and the agreements were finally entered into. By the terms of the contracts all water was measured at the intakes and in cubic feet per second instead of in miners' inches. The appellant was called upon to state the quantity of water which it was using. It placed it at 4,000 miners' inches, a quantity which was taken by all parties to be the equivalent of 80 cubic feet per second. With that understanding the agreements were executed.

The appellant now contends that 80 cubic feet per second diverted from the river is not the equivalent of the 4,000 miners' inches which its stockholders had been accustomed to use, and as they had measured it; that they had measured it at the points of delivery and not at the intake, and under a pressure which in fact delivered to them 90.4 cubic feet per second, and that by seepage from the canal, which is several miles in length, 14 cubic feet are necessarily lost and returned to the river before delivery to the stockholders and that...