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10. WATERS AND WATER COURSES C 254–APPROPRIATION-BENEFICIAL USE

AMOUNT

In a suit to determine conflicting rights to the waters of a public stream, 3 acre-feet per acre for bay and grain land, and 112 acre-feet for pasture land, held a reasonable allowance to defendant, whose land was

only slightly above the water in the streams. 11. WATERS AND WATER COURSES N247(1)-RIGHTS AS BETWEEN STATES

PARTIES.

The rights, as between states, to share in the waters of an interstate stream, is a matter for adjustment between the states, and individual users cannot raise a question about the use of such water in another state out

of the territorial jurisdiction of the court. 12. WATERS AND WATER COURSES Ew247(1)—PRIOR APPROPRIATIONS-NATURE

OF SUIT.

A suit to determine rights to the waters of a public stream between parties claiming by prior appropriation is essentially one to quiet title to

real property and is local and not transitory. 13. COURTS 29—-POWERS-PROPERTY OUTSIDE OF JURISDICTION.

The rem may not be affected by the direct operation of the decree where it is beyond the territorial jurisdiction of the court, but the court may,

acting in personam, coerce action respecting such property. 14. WATERS AND WATER COURSES C240_USE-RESTRICTIONS.

Ordinarily one having obtained the right to use a given quantity of water from a public stream may change the place or character of its use

and the point of diversion. 15. WATERS AND WATER COURSES 247(1)—REGULATION OF USE TERRITORY

BEYOND JURISDICTION OF COURT.

The United States District Court of Idaho had the power, in a proceeding in personam, to restrict defendant's use of the water to a circumscribed locality in Nevada, where a change in territory would result in

less water flowing back into the stream, resulting in loss to plaintiffs. 16. WATERS AND WATER COURSES Om 247(1)-REGULATION OF USE—TERRITORY

BEYOND JURISDICTION OF COURT.

It was also proper to impose upon defendant the obligation of installing measuring devices and keep a record of the amount of water diverted,

etc., and provide that plaintiffs should have the right of inspection. 17. WATERS AND WATER COURSES Cm 240—CAREY ACT-PERFECTING APPROPRI

ATION-TIME.

In a project, under the Carey Act of Congress, to impound all waters of the Salmon river, in Idaho, plaintiffs had 10 years within which to make diversion, and proof thereof, for a beneficial use, in view of Laws

Idaho 1915, c. 94. Appeal from the District Court of the United States for the Southern Division of the District of Idaho; Frank S. Dietrich, Judge.

Suit by the Twin Falls Salmon River Land & Water Company, a corporation, and another, against the Vineyard Land & Stock Company, a corporation. From the decree entered, defendant appeals. Affirmed.

Frank K. Nebeker, of Salt Lake City, Utah, C. A. Boyd, of Ogden, Utah, Edwin Snow, of Boise, Idaho, and C. B. Henderson, of Elko, Nev. (Howat, Marshall, Macmillan & Nebeker, of Salt Lake City, Utah, of counsel), for appellant.

Richards & Haga and J. L. Eberle, all of Boise, Idaho, for appellees.

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

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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WOLVERTON, District Judge. This suit was instituted to determine the conflicting water rights alleged by the parties, respectively, to have been acquired by prior appropriation. The defendant, appellant here, is engaged in raising and husbanding stock upon the ranges, consisting in most part, but not entirely, of lands it has acquired and now owns. It is alleged that these appropriations of water are from Salmon river and its tributaries. The river extends for many miles in the state of Nevada, running in a general northerly direction, crosses the northern boundary line into the state of Idaho, and continues in that state down to where its waters are captured by plaintiffs, who are the appellees here. The plaintiffs are the owners of a project devised and constructed under the provisions of the Carey Act of Congress (Act Aug. 18, 1894, c. 301, § 4, 28 Stat. 422 [Comp. St. 1916, § 4685]), whereby is impounded all the water coming down Salmon river, by means of a dam of unusual dimensions, forming a reservoir in the stream. The dam being completed, water was first turned into it about May 1, 1911, and its use for irrigation began in June of that year. The appropriation was acquired under three permits issued by the state engineer of the state of Idaho. These permits are: (1) No. 2,659, for 1,500 cubic feet per second, with a priority as of December 29, 1906; (2) No. 3,267, for 500 cubic feet, with a priority as of August 22, 1907; and (3) No. 5,519, for 1,000 cubic feet, as of September 7, 1909. It was intended by the project to reclaim 150,000 acres of land, but, because of the limited water supply, the system was reduced to reclaim approximately 100,000 acres only. Water rights have been actually sold aggregating about 73,000 acres. The entire water flow, however, never reached the dimensions of the first permit, and, generally, but a small proportion thereof. That these appropriations were regularly made and acquired there is no dispute ; the sole controversy being as to what appropriations the defendant has that are prior in time and superior in right to the plaintiffs' appropriations. The principal ranches for which appropriations are claimed by the defendant are the Hubbard ranch, lying mainly in township 43, range 63 east, a small portion only extending into township 44; the Vineyard ranch, in township 44, range 63; the San Jacinto ranch, extending from the center line of section 21, township 45, range 64, to about the south line of section 23, in township 47, range 64, being comprised by townships 45, 46, and 47, range 64 east; and the Bridge ranch, on the Shoshone creek, a tributary to Salmon river, in township 47, ranges 64 and 65. Other small appropriations are claimed from other tributaries to Salmon river, which will be mentioned specifically.'

The trial court decreed that defendant is entitled to 12,500 acre-feet of water to satisfy the rights which may be said to be prior to those of the plaintiffs. This comprises all appropriations upon all the ranches designated, as well as those to be specifically mentioned. The decree specifically describes the lands to which the appropriations are appurtenant, and defendant's counsel claim that these aggregate approximately 11,660 acres, which a cursory estimate from the record confirms, but say there are in fact something over 3,000 acres of unirrigated lands described in the decree. The trial court, however, in

its opinion, indicated that a prior right should be recognized in the defendant for the irrigation of 3,000 acres of hay land and 2,500 acres of pasture, aggregating 5,500 acres. Its basis for the duty of water was approximately 3 acre-feet for hay and grain land and 112 acrefeet for pasture.

The testimony on the part of the defendant relating to the diversions of water upon the lands claimed to have been irrigated, the dates diversions were made, the amount diverted, the specific lands to which the use was applied, and the seasonal application, is quite voluminous, and, as it covers many years, depending very largely upon the memory of witnesses, it is wanting in that specific and exact detail that one would wish to make it altogether dependable and reliable. Such a state of the record requires, therefore, the application of the greatest care and diligence in resolving the ultimate facts upon which to pass the decree.

The defendant's stock ranges, located along Salmon river and its tributaries in both Idaho and Nevada, are at an elevation ranging from 5,200 feet to 5,700 feet above sea level. The growing season for crops of grains and grasses is consequently short as compared with lower levels. That such crops may be satisfactorily and profitably produced cannot be questioned; but as to grains and alfalfa, it may be conceded that they cannot be produced in such great abundance as on the lower levels. For instance, but two crops of alfalfa can be produced during the season, while the usual croppings in the lower levels are three. The testimony in the record shows that, during the whole time these ranges have been occupied down to the time that this controversy arose, there were but about 21 acres of wheat and 27 acres of oats grown on the entire ranges. This is evidentiary in a way of the adaptability, or want of adaptability rather, of such lands for profitably producing such crops. The inference is that such crops were not economically profitable for the stock industry, or the lands were not profitably adaptable for growing the same, taking into consideration, along with the quality of the soil, the short seasons and the convenience or inconvenience of marketing owing to the distance from marketing centers. These lands up to this time have not been generally occupied for residential or home purposes, and but few cabins have been maintained upon the ranches, and those only for the habitation of range riders or caretakers of stock, while the stock was being provided with feed in the late fall or winter season.

In a general sense, the manner of irrigating the lands was by the flooding system; that is, depending in a measure on the flood waters that came down along about the month of June in such quantities as to overflow the banks of the streams, but more generally upon the construction of dams and barriers in the streams, by rude and unscientific methods, to throw the water out in such quantity as to cover the lands, and allow it to remain thereon a considerable length of time. The waters thus thrown out upon the land are controlled more or less by the construction of ditches and conduits for carrying them upon lands that they would not ordinarily reach in the usual course when thrown out of the natural channel. The ditches, most of them, until

later years, were of primitive construction, and in many instances were so laid as to make use of the sloughs and swales for conducting water to places of advantage. Latterly some of the ditches were built with greater attention to scientific construction, the most conspicuous of which is the Harrell ditch, which will be especially treated of later. Generally the water was used for producing the natural grasses indigenous to those localities, including the rye grass, a very nutritious article of food for stock. In considerable measure the native grasses were produced in such quantities as to be cut for hay, and were so cut and fed to stock as occasion demanded; but by far the larger proportion of the area thus irrigated was utilized for pasturage only. This pasture land generally lies contiguous to the streams and the natural runways for the water. Much of it is grown over with willows in greater or less density, and other parts are occupied by sloughs and swales, where to some extent a coarse grass grows upon which the stock browse. In the more recent years water has been thrown over considerable areas of land covered with sagebrush, for the purpose, it is claimed, of promoting the growth of the natural grasses found there for pasturage purposes. This is upon the higher levels, and at best the grass found there is insignificant in quantity. By reason of the water table being near the surface, and the natural percolation that takes place in the soil, and considering also the overflooding, this method of irrigation results in the lower levels in returning very large quantities of water to the natural streams.

Having made these general observations, which apply practically without question, we will proceed to a consideration of the testimony.

We can best get at the most satisfactory results by a comparison of maps which have been introduced in evidence as exhibits, considering along with them the testimony giving statistics as the result of witnesses' observations.

The witness L. W. Beason made measurements and surveys of defendant's property in 1914, and was engaged in the work, he and his subordinates, about eight months. This, it must be observed, was some seven or eight years after plaintiffs made their first appropriation. After relating what ditches he found, giving their measurements and capacities, the witness produced a map, defendant's Exhibit No. 11, covering the. Hubbard and Vineyard ranches, which shows by the coloring the hay and pasture lands; the total acreage being, hay land 866.7 acres, and pasturage 1,728.3 acres. He also produced defendant's Exhibit 12, a map which covers the Salmon river or San Jacinto ranch, extending from Bird's Nest to Boar's Nest, with different colorings indicating the different kinds of lands, such as first-class pasture lands, second-class pasture lands, etc. He gives the area of each class, all claimed to be under irrigation, as follows: First-class pasture land.....

2,501.2 acres. Second-class pasture land.

1,073.7 Hay land...

1,766.2 Grain land...

1,481.7 Seeded to timothy..

66

242.6

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This, with the lands of the Hubbard and Vineyard ranches added, makes a grand total of 9,660.4 acres.

The witness relates that there are none of the lands marked meadowlands, or first or second class pasture lands, that have not received the benefits of irrigation. Other plowlands were measured, not shown on the exhibit, of which there are 1,205.4 acres, all under the Big ditch. This latter must be excluded, as will appear from a consideration of the Harrell or High Line ditch. Witness also produced a map, defendant's Exhibit No. 13, covering the Bridge ranch. This shows: Pasture land...

428.0 acres. Hay land.. Grain land.

27.3

124.8

Total

580.1

Making a grand total, comprising all these ranches, of 10,240.5 acres.

On the other hand, the plaintiffs produced one E. B. Darlington, also a civil engineer, who made observations and estimates in 1911, three years earlier than those made by Beason, and yet four or five years later than the date of plaintiffs' first appropriation. He produced maps covering the Vineyard ranch and all above that, including the Bridge ranch. These are plaintiffs' Exhibits 11 and 18. The former shows by different colorings the different lands under irrigation in that year, and the latter designates by various colors additional lands that defendant claims are under and subject to irrigation. On the Vineyard ranch the maps show: Hay land, irrigated... Pasture land, irrigated. Pasture land, not irrigated.

83.8 Total, irrigated land.....

447.9 not irrigated...

83.8

429.6 acres.

18.3

3. As to the San Jacinto ranch, not including the Bridge ranch, these maps show: Ilay land, irrigated..

1,033.4 acres. Pasture land, irrigated.

788.6 Alfalfa land, irrigated..

140.2 Wheat

21.0

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Aside from these, there is a tract shown of 414.0 acres, designated as hay not irrigated, and another tract of 1,117.4 acres, designated as pasture not irrigated...

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