CASES

ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS

BURLEY v. UNITED STATES et al.

(Circuit Court of Appeals, Ninth Circuit. July 5, 1910.)

No. 1,803.

1. EMINENT DOMAIN (§ 29*)—GOVERNMENT IRRIGATION PROJECT-STaTutes— CONSTRUCTION.

Irrigation Act June 17, 1902, c. 1093, § 1, 32 Stat. 388 (U. S. Comp. St. Supp. 1909, p. 596), provides for the formation of a reclamation fund with money received from the sale of public lands in certain states and territories. Section 3 authorizes the withdrawal from entry of lands required for irrigation works, and on the completion of surveys of such lands, etc., makes it the duty of the Secretary of the Interior to determine whether the project is practicable, and, if so, the public lands which they propose to irrigate shall only be subject to entry of specified tracts. Section 4 provides that, if there are necessary funds in the reclamation fund available for the purpose, the project shall be constructed on a contract with the Secretary, who shall give notice of the lands irrigable and of the charges to be made per acre on the entries to be made and on lands in private ownership which may be irrigated by the waters in the project. Section 5 declares that no right to the use of water for land of private ownership shall be sold exceeding 160 acres to any one landowner. Held, that the act contemplated the irrigation of private lands as well as lands belonging to the government, and that the fact that a scheme contemplated the irrigation of private as well as a large tract of government land did not render the project illegal, so as to prevent the condemnation of land necessary to carry it out.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 76; Dec. Dig. § 29.*]

2. EMINENT DOMAIN (§ 5*)—IRRIGATION-RIGHTS OF THE UNITED STATES. The United States has constitutional authority to organize and maintain an irrigation project within a state where it owns arid lands, whereby it will associate with itself other owners of like lands for the purpose of reclaiming and improving them, and for that purpose may exercise the right of eminent domain against other landowners to obtain land necessary to carry the proposed project in effect.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 19-23; Dec. Dig. § 5.*

Nature and extent of power of United States to condemn property for public use, see note to Town of Nahant v. United States, 70 C. C. A. 653.] In Error to the Circuit Court of the United States for the Central Division of the District of Idaho.

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 179 F.-1

Condemnation proceedings by the United States of America and the County of Canyon, Idaho, against David E. Burley. From an order directing condemnation (172 Fed. 615), defendant brings error. Affirmed.

This action was brought in the Circuit Court of the United States for the District of Idaho, by authority of the Attorney General of the United States, on behalf of the United States, pursuant to an application made therefor by the Secretary of the Interior, proceeding under section 7 of the Act of June 17, 1902, c. 1093, § 7, 32 Stat. 388 (U. S. Comp. St. Supp. 1909, p. 600), entitled, “An act appropriating the receipts from the sale and disposal of public lands in certain states and territories to the construction of irrigation works for the reclamation of arid lands." The state of Idaho is one of the states made subject to the provisions of this act. Section 7 provides as follows: "That where in carrying out the provisions of this act it becomes necessary to acquire any rights or property, the Secretary of the Interior is hereby authorized to acquire the same for the United States by purchase or by condemnation under judicial process, and to pay from the reclamation fund the sums which may be needed for that purpose, and it shall be the duty of the Attorney General of the United States upon every application to the Secretary of the Interior, under this act, to cause proceedings to be commenced for condemnation within thirty days from the receipt of the application at the Department of Justice."

It is alleged in the amended complaint that the Secretary of the Interior had caused to be surveyed and located a certain irrigation project in the state of Idaho, known as the "Payette-Boise Project," and had determined that the same was practicable, and had let the contracts for the construction thereof; that the said irrigation project included as a part thereof the construction of a reservoir in Canyon county, Idaho, commonly known and designated as the "Deer Flat Reservoir"; that the site of the reservoir included two certain described tracts of land in Canyon county, Idaho, containing in the aggregate 296 acres, the title to which stood in the name of the defendant Burley, who was capable of conveying title in fee to said premises free and clear of all incumbrances, except the interest therein of the county of Canyon, Idaho; that the county of Canyon claimed some interest, estate, or title in said premises; that the reservoir was at the time of the filing of the complaint in the actual course of construction, and. when completed the water impounded by said reservoir would completely overflow the lands described in the complaint; that it had become necessary that the United States acquire title to the lands described in the complaint for use as a part of said reservoir site, and for such purpose the United States, acting through the Secretary of the Interior, had been and was desirous of purchasing and acquiring title in fee to said tract of land for that purpose; that the Secretary of the Interior was authorized by law to acquire said lands by condemnation, and in his opinion it was necessary and advantageous to the government that the said lands should be so acquired; that said irrigation project was being primarily constructed for the purpose of supplying water for irrigation to arid lands in Ada and Canyon counties, in the state of Idaho, which were public lands of the United States, and that more than 50,000 acres of the public lands of the United States would be supplied with water for irrigation and reclamation from the said project by means of said Deer Flat reservoir; that the land described, the title to which was in the defendant, and which was included in said reservoir site, was absolutely necessary for the use of the government in the construction of said reservoir; that the reasonable value of said land did not exceed $10 per acre, amounting to $2,960, and the United States offered to purchase said lands at said valuation; that a disagreement had occurred and then existed between the defendant and the United States concerning the purchase of said tracts of land by the United States, to wit, that the United States and defendant were unable to agree upon a price for the land which the United States considered to be reasonable; and that the defendant asked and demanded therefor a price which in the opinion of the United States was more than said land was worth. The United States prayed for judgment that it should be adjudged that the public use required the

condemnation of the land described, and that the United States should be entitled to take and hold title in fee to said land for the public use specified upon making compensation therefor, and that the court proceed to determine in the manner prescribed by law; compensation to be paid by the United States for the said property.

To this amended complaint the defendant interposed a demurrer on various grounds of uncertainty, among others, that it did not appear therefrom whether it was the purpose of the United States to devote said irrigation project wholly and entirely to the irrigation of lands owned or possessed by the United States, or whether its purpose was to devote said reservoir and project in part or otherwise to furnishing water for the purpose of irrigating lands in which the United States had no title or possession, but which were owned and possessed by other persons. The demurrer upon the ground mentioned was overruled, and thereupon the defendant answered, in which he admitted, among other things, the allegation in the amended complaint that a disagreement had occurred and then existed between the defendant and the United States concerning the purchase of said tracts of land by the United States; that is to say, the disagreement was as to the purchase price, but the defendant denied that he demanded or asked a price for said lands in excess of their worth. The defendant, further answering, and as a further defense to the cause of action, alleged that he was informed and believed, and therefore averred the fact to be, that it was the design, intention, and purpose of the United States to construct the irrigation project mentioned and described in said amended complaint for the purpose of supplying water to lands not owned or possessed by the United States, or in which the United States had any interest of any kind or character, but which were owned and possessed by, and in which private individuals alone were interested, and that the proceeding was instituted for the purpose of, and it was the design and intention of the United States, if successful therein, to devote said land of defendant to said purposes, in order to enable the United States to irrigate such lands, the title to which was reposed in private ownership, and to further the interests of the owners thereof, and to use and devote defendant's lands in aid of private enterprises in the improvement of lands not owned, possessed, or controlled in any wise by the United States, or in which it had any right, title, interest, or possession of any kind or character whatsoever, of a public or governmental nature.

Upon the issues thus presented the case was tried before the court and a jury upon a stipulation between the parties to the action that all issues, except that of the value of the land sought to be condemned, should be heard before the court without a jury, and that the question of the value of the land should be submitted to the jury. Thereupon a jury was impaneled, and, the court having announced its decision upon the issues submitted to it, the jury, under the instructions, returned a verdict for the amount agreed upon by counsel for the respective parties, to wit, the sum of $5,920. The findings of the court upon the issues submitted to it were as follows:

"(1) That this action is brought by the authority of the Attorney General of the United States, on behalf of the United States, pursuant to an application made therefor by the honorable Secretary of the Interior of the United States, proceeding under the provisions of an act of Congress entitled 'An act appropriating the receipts from the sale and disposal of public lands in certain states and territories for the construction of irrigation works for the reclamation of arid lands,' approved June 17, 1902. 32 Stat. 388.

"(2) That long prior to the commencement of this action the honorable Secretary of the Interior, proceeding under authority of said act, caused to be surveyed and located a certain irrigation project in the state of Idaho known as the 'Payette-Boise Project,' and determined that the same was practicable, and let contracts for the construction thereof; said project being situate in the counties of Ada and Canyon. That said project includes, as a part thereof, the construction of a reservoir in Canyon county, Idaho, commonly known and designated as the 'Deer Flat Reservoir,' the site of which is a natural basin comprising approximately 10,000 acres of land. That the land described in the amended complaint as belonging to the defendant, the title to which the plaintiff seeks by this action to acquire, is situate within

said basin, and will, if said basin is used as a reservoir site, be covered with water. That said reservoir was, at the time of the commencement of this action, in the actual course of construction. That both the lands embraced in said reservoir site and those in the vicinity thereof are arid in character, and cannot be profitably farmed without artificial irrigation. That of the lands embraced within the reservoir site the plaintiff owned only a small portion, but of the lands adjacent thereto and in the vicinity thereof, and susceptible of irrigation therefrom, the plaintiff was the owner of approximately 45,000 acres, and approximately the same amount of lands had passed to patent and were in private ownership. That at the time said project was surveyed and its feasibility considered all the natural flow of Boise river, the only available source of supply for the irrigation of said and other lands during a large portion of the irrigating season, had been appropriated, and was being diverted by private corporations for the irrigation of agricultural lands, and no considerable additional area could be irrigated, except by storing and conserving waters flowing in the river during the winter months, or during the high-water season. The project as finally decided upon by the honorable Secretary of the Interior contemplated the taking over of an existing canal, called the 'New York Canal,' which was to be improved, enlarged, and extended, and through which water was to be carried to said reservoir for the supply thereof during seasons of the year when there was an adequate supply of water in the river for such purpose, and for delivering water to parties who already had the right to receive water from said canal by reason of existing contracts, and also to furnish water for the irrigation of lands belonging to the plaintiff which were susceptible of irrigation from said canal, and for the irrigation of unreclaimed lands belonging to private individuals, but the entire project was for the irrigation and reclamation of arid lands. That after the government had made some investigation, but before said project was decided upon, property owners and citizens of said counties of Ada and Canyon entered upon a systematic agitation of the project, and certain individuals, acting upon behalf of the public, and complying with the laws of the state of Idaho relative to securing permits for the appropriation of water, secured permits for such appropriation from the Boise river, and assigned the same to the United States, and the owners of arid lands, for the irrigation of which there was no available water, proffered to the government their cooperation and assistance, agreeing that if the government would undertake the project, and thereby furnish water for the irrigation of their lands, they would bear their proportion of the expense thereof. That in consideration of the large tract of public land to be irrigated and reclaimed by means of said project, and such co-operation and assistance from private owners, the honorable Secretary of the Interior adopted said project and entered upon its construction. That in order to irrigate some of the public lands lying in the vicinity of said reservoir it is necessary to maintain the water in said reservoir at such a level as will cause the same to overflow the defendant's land. That at the time said project was being investigated the public lands lying in the vicinity of said reservoir site and susceptible to irrigation from said reservoir were withdrawn from entry under the public land laws, and since said withdrawal substantially all of said lands have been entered under and subject to the conditions of said reclamation act.

"(3) That the honorable Secretary of the Interior entered upon said project of the construction of said reservoir primarily for the purpose of irrigating public lands of the United States, and that the United States has a large and substantial interest in the successful execution of that project, in that thereby water will be rendered available for the irrigation of large tracts of its own lands, thus rendering them marketable; and that, for the purpose of carrying out said irrigation project, it is necessary that the plaintiff acquire the title to the defendant's lands, as the same are described in the amended complaint, in order that it may use them for a part of said reservoir site.

"(4) That the defendant, David E. Burley, is the sole owner of said lands, and the county of Canyon has no title thereto or interest therein.

"(5) That the plaintiff and the defendant, David E. Burley, were unable to agree upon the value of said lands, or the price to be paid therefor by the plaintiff.