Imágenes de páginas
PDF
EPUB

TMAS DIE TEREInes, of the soTO TATTO”s et exvIN ? Le nut and whol it proposes to make for the is a sach gês Troer 71,800T, Dareios (2) char Congress 200 only may bersamunera, y 30s) such, locú na ve mda wha Mompensation but that in any las are si sd 2 that hug? De vers they must be sorred in computing the dres

We conclude, as 51 the count of screed flat age flag) saudar rights are of a kind that is within the srece od de depengguna yang tode, the Government has not exercised its power to 400tal ana un de de 7. U. S. v. Twin City Power C2, 330 U. 8., 2880 mabai appeals from two circuit court decisans holding that past augens tion includes the value of the land as a potential power site where the United States exercises the power of emirert domain to obtain privately owned power site on a navigable river (de C Cay Power Co., 215 F. 2d 592 (1934) and U. S. v. Dwn Cay Powe Co., 221 F. 2d 299 (1955)). These two decisions were occasioned by the fact that the lands in dispute bordered two circuits.

By a 5-4 decision, the Supreme Court held that the fifth amendment did not require compensation for the land's value as a site for hy days electric power, where Congress had authorised construction of a dam for multiple purposes, one of which was improvement of navigation, As to the need for this improvement, the Court said it would not substitute its judgment for that of Congress, citing Arizona V. Cal (1931) (283 U. S. 423, 455–457),

With respect to the constitutional power, the majority said:

The interest of the United States in the flow of a navigable stream originates in the commerce clause. That clause speaks in terms of power, not of property. But the power is a dominant one which can be asserted to the exelusion of any com peting or conflicting one. The power is a privilege which we have called "a dom inant servitude" (see United States v. Commodore Park Inc., 824 V, S. 386, 891; Federal Power Commission v. Niagara Mohawk Power Corp., 847 U, 8, 239, 249) or "a superior navigation easement” (United States v. Gerlach Live Stock C5, 389 U. S. 725, 736). The legislative history and construction of particular enactme may lead to the conclusion that Congress exercised less than its constitutional power, fell short of appropriating the flow of the river to the public domain, and provided that private rights existing under State law should be compensablo or otherwise recognized. Such were United States v. Gerlach Live Stock Co., supra, and Federal Power Commission v. Niagara Mohawk Power Corp., supra. have a different situation here. One where the United States displaces all com peting interests and appropriates the entire flow of the river for the declared public

purpose.

On the specific question of just compensation, the majority said:

We

***The holding in Chandler-Dunbar led us to say in United States v. Appalachian Power Co., supra, at 424, that the "exclusion of riparian owners" from the benefits of the power in a navigable stream "without compensation is entirely within the Government's discretion." And again, "If the Government were now to build the dam, it would have to pay the fair value, judicially determined, for the fast land; nothing for the waterpower" (id., 427).

The power company in the present case is certainly in no stronger position than the owner of the hydroelectric site in the Chandler-Dunbar enNOS, While the latter was deprived of a going private owner project by the Government, the present private power never had a power project on the Savannah and as a result of the Government's preemption never can have one.

It is no answer to say that these private owners had interests in the water that were recognized by State law. We deal here with the Federal domain, an area which Congress can completely preempt, leaving no vested private claims that constitute "private property" within the meaning of the fifth amendment, Location of the lands might under some circumstances give them special values, as our cases have illustrated. But to attach a value of water power of the Savannah River due to location and to enforce that value against the United

States would go contra to the teaching of Chandler-Dunbar "that the running water in a great navigable stream is capable of private ownership is inconceivable" (229 U. S. at 69).

From this it can be seen that the decision may have serious implications in the field of western water rights, especially in view of the distinction noted in connection with the Gerlach decision.

C. WATER RIGHTS

1. California Oregon Power Co. v. Beaver Portland Cement Co. (295 U. S. 142 (1935)): The power company sought to enjoin interference with the normal flow of the Rogue River, a nonnavigable stream bordering its lands. Its title was derived from a patent issued to its predecessor in title in 1885 under the Homestead Act of May 20, 1862. Lands on the opposite side of the river owned by the city of Gold Hill, were occupied by the cement company which engaged in blasting west of the thread of the stream for the double purpose of freeing the channel, incident to the use of water rights adjudicated and permitted, and securing broken stone for a dam to be used in connection with a powerplant which it intended to build. Neither party intended to make an actual appropriation of water. The cement company based its prayer for an injunction on the common-law rights of a riparian proprietor notwithstanding the Oregon Water Code of 1909 (Oregon laws, 1909, ch. 216) which provided that all waters within the State should be subject to appropriation for beneficial use. Such appropriations were subject to "vested rights" which by definition require actual application of water to beneficial use prior to the passage of the 1909 water code. The lower court held that the homestead patent issued in 1885 carried with it the common-law riparian right but that this right could be moidfied by State legislation.

Justice Sutherland stated that the effect of the act of July 26, 1866, supra, as amended, was not merely to confirm local and customary law and usage. "The effect of these acts is not limited to rights acquired before 1866. They reach into the future as well, and approve and confirm the policy of appropriation for beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land States, as the test and measure of private rights in and to the nonnavigable waters on the public domain” (p. 155).

If the acts of 1866 and 1870 did not constitute an entire abandonment of the common-law rule of running waters insofar as the public lands and subsequent grantees thereof were concerned, they foreshadowed, according to Justice Sutherland, the more positive declarations of the Desert Land Act of 1877, supra. He said (pp. 163-164):

*** Nothing we have said is meant to suggest that the act, as we construe it, has the effect of curtailing the power of the States affected to legislate in respect of water and water rights as they deem wise in the public interest. What we held is that following the act of 1877, if not before, all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated States, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain. For since "Congress cannot enforce either rule upon any State," Kansas v. Colorado (206 U. S. 46, 94), the full power of choice must remain with the State. The Desert Land Act does not bind or purport to bind the States to any policy. It simply recognizes and gives sanction, insofar as the United States and its future grantees

are concerned, to the State and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation. See Wyoming v. Colorado (259 U. S. 419, 465).

Back of this was this more detailed explanation by Justice Sutherland:

For many years prior to the passage of the act of July 26, 1866 (ch. 262, sec. 9, 14 Stat. 251, 253), the right to the use of waters for mining and other beneficial purposes in California and the arid region generally was fixed and regulated by local rules and customs. The first appropriator of water for a beneficial use was uniformly recognized as having the better right to the extent of his actual use. The common law with respect to riparian rights was not considered applicable, or, if so, only to a limited degree. Water was carried by means of ditches and flumes great distances for consumption by those engaged in mining and agriculture (Jennison v. Kirk, 98 U. S. 453, 457-458). The rule generally recognized throughout the States and territories of the arid region was that the acquisition of water by prior appropriation for a beneficial use was entitled to protection; and the rule applied whether the water was diverted for manufacturing, irrigation, or mining purposes. The rule was evidenced not alone by legislation and judicial decision, but by local and customary law and usage as well (Basey v. Gallagher, 20 Wall. 670, 683–684; Atchison v. Peterson, 20 Wall. 507, 512–513).

This general policy was approved by the silent acquiescence of the Federal Government, until it received formal confirmation at the hands of Congress by the act of 1866, supra (Atchison v. Peterson, supra). Section 9 of that act provides: "That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the rightof-way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: ***”

This provision was "rather a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use, than the establishment of a new one." (Broder v. Water Co., 101 U. S. 274, 276; United States v. Rio Grande Irrigation Co., 174 U. S. 690, 704-705). And in order to make it clear that the grantees of the United States would take their lands charged with the existing servitude, the act of July 9, 1870 (ch. 235, § 17, 16 Stat. 217, 218), amending the act of 1866, provided that

"*** all patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory."

The effect of these acts is not limited to rights acquired before 1866. They reach into the future as well, and approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land States, as the test and measure of private rights in and to the nonnavigable waters on the public domain (Jones v. Adams, 19 Nev. 78, 86; 6 Pac. 442; Jacob v. Lorenz, 98 Cal. 332, 335–336; 33 Pac. 119). If the acts of 1866 and 1870 did not constitute an entire abandonment of the common-law rule of running waters insofar as the public lands and subsequent grantees thereof were concerned, they foreshadowed the more positive declarations of the Desert Land Act of 1877, which, it is contended, did bring about that result. That act allows the entry and reclamation of desert lands within the States of California, Oregon, and Nevada (to which Colorado was later added), and the then Territories of Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and Dakota, with a proviso to the effect that the right to the use of waters by the claimant shall depend upon bona fide prior appropriation, not to exceed the amount of waters actually appropriated and necessarily used for the purpose of irrigation and reclamation. Then follows the clause of the proviso with which we are here concerned:

"*** all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights" (ch. 107, 19 Stat. 377).

For the light which it will reflect upon the meaning and scope of that provision and its bearing upon the present question, it is well to pause at this point to consider the then-existing situation with respect to land and water rights in the States and territories named. These States and territories comprised the western third of the United States-a vast empire in extent, but still sparsely settled. From a line east of the Rocky Mountains almost to the Pacific Ocean, and from the Canadian border to the boundary of Mexico-an area greater than that of the Original Thirteen States—the lands capable of redemption, in the main, constituted a desert, impossible of agricultural use without artificial irrigation.

In the beginning, the task of reclaiming this area was left to the unaided efforts of the people who found their way by painful effort to its inhospitable solitudes. These western pioneers, emulating the spirit of so many others who had gone before them in similar ventures, faced the difficult problem of wresting a living and creating homes from the raw elements about them, and threw down the gage of battle to the forces of nature. With imperfect tools, they built dams, excavated canals, constructed ditches, plowed and cultivated the soil, and transformed dry and desolate lands into green fields and leafy orchards. In the success of that effort, the general Government itself was greatly concerned-not only because, as owner, it was charged through Congress with the duty of disposing of the lands, but because the settlement and development of the country in which the lands lay was highly desirable.

To these ends, prior to the summer of 1877, Congress had passed the mining laws, the homestead and preemption laws, and finally, the Desert Land Act. It had encouraged and assisted by making large land grants to aid the building of the Pacific railroads and in many other ways, the redemption of this immense landed estate. That body thoroughly understood that an enforcement of the common-law rule, by greatly retarding if not forbidding the diversion of waters from their accustomed channels, would disastrously affect the policy of dividing the public domain into small holdings and effecting their distribution among innumerable settlers. In respect of the area embraced by the desert-land States, with the exception of a comparatively narrow strip along the Pacific seaboard, it had become evident to Congress, as it had to the inhabitants, that the future growth and well being of the entire region depended upon a complete adherence to the rule of appropriation for a beneficial use as the exclusive criterion of the right to the use of water. The streams and other sources of supply from which this water must come were separated from one another by wide stretches of parched and barren land which never could be made to produce agricultural crops except by the transmission of water for long distances and its entire consumption in the processes of irrigation. Necessarily, that involved the complete subordination of the common-law doctrine of riparian rights to that of appropriation. And this substitution of the rule of appropriation for that of the common law was to have momentous consequences. It became the determining factor in the long struggle to expunge from our vocabulary the legend "Great American Desert," which was spread in large letters across the face of the old maps of the Far West.

[ocr errors]

In the light of the foregoing considerations, the Desert Land Act was passed, and in their light it must now be construed. By its terms, not only all surplus water over and above such as might be appropriated and used by the desert-land entrymen, but "the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable" were to remain "free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes." If this language is to be given its natural meaning, and we see no reason why it should not, it effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself. From that premise, it follows that a patent issued thereafter for lands in a desert-land State or Territory, under any of the land laws of the United States, carried with it, of its own force, no commonlaw right to the water flowing through or bordering upon the lands conveyed. While this court thus far has not found it necessary to determine that precise question, its words, so far as they go, tend strongly to support the conclusion which we have suggested (pp. 154–158).

2. Ickes v. Fox (300 U. S. 82 (1937)): Ickes' predecessor, Secretary of the Interior Wilbur, issued notices with respect to the Sunnyside unit of the Yakima Reclamation project which if enforced by Secretary Ickes which have diminished the vested water rights of Fox and others. (See 85 F. 2d 294, 295.) The sole question was whether the United States was an indispensable party defendant. The answer

to this question depended on the nature of the order. Said Justice Sutherland:

The suits do not seek specific performance of any contract. They are brought to enjoin the Secretary of the Interior from enforcing an order, the wrongful effect of which will be to deprive respondents of vested property rights not only acquired under congressional acts, State laws, and Government contracts, but settled and determined by his predecessors in office. That such suits may be maintained without the presence of the United States has been established by many decisions of this court ***.

The factual situation giving rise to this litigation is important. In 1906 the Secretary of Interior approved the Sunnyside unit of the Yakima project and purchased from the Washington Irrigation Co. the Sunnyside Canal and water appropriations connected therewith. Included in the new project were arid lands later acquired by Fox. The Sunnyside Water Users Association was organized. Its contract with the Secretary, among other things, required that members acquire rights to obtain water as soon as the project was completed, and it provided that these rights thereafter should continue to be appurtenant to the designated lands (p. 89). Construction charges were $52 per acre and the Fox lands were allotted 4.84 acre-feet of water as the quantity necessary for beneficial and successful irrigation. In 1914, the Secretary issued notice that there would be no increase in construction charges. Under the law, they thereafter could not be increased except by agreement (p. 91).

In 1930 the Commissioner of Reclamation desired to construct the Cle Elum Reservoir and finding that the cost would exceed the return by $1 million, he arbitrarily charged that sum to the Sunnyside unit. Fox, and others, alleged that for the purpose of coercing water users to agree to pay this cost, the Secretary gave public notice and issued an order limiting them to 3 acre-feet of water. This, they alleged, was insufficient and would cause irreparable loss and damage. They asked that the order be vacated. The Secretary contended that because the Government diverted, stored, and distributed the water it thereby acquired ownership of that water. The Supreme Court rejected this contention. Appropriations, under the Reclamation Act, it said were made not for the Government but, for the use of the landowners, and by the terms of that law, as well as Washington law and of the contract, the water rights became the property of the landowners, wholly distinct from the property of the Government in the irrigation works. The action of the Secretary being wrongful and therefore personal, the United States was not an indispensable party to the suit.

Said the Court:

*** Although the Government diverted, stored, and distributed the water, the contention of petitioner that thereby ownership of the water or water rights became vested in the United States is not well founded. Appropriation was made not for the use of the Government, but, under the Reclamation Act, for the use of the landowners; and by the terms of the law and of the contract already referred to, the water rights became the property of the landowners, wholly distinct from the property right of the Government in the irrigation works. Compare Murphy v. Kerr (Fed. 536, 544, 545). The Government was and remained simply a carrier and distributor of the water (ibid.), with the right to receive the sums stipulated in the contracts as reimbursements for the cost of construction and annual charges for operation and maintenance of the works. As security therefor, it was provided that the Government should have a lien upon the lands and the water rights appurtenant thereto a provision which in itself

« AnteriorContinuar »