Silver Lake Power & Irrigation Co. v. City of Los Angeles

Respondent’s predecessors in interest first conceived the plan of utilizing the waters of Owens River and of Rock Creek, one of its tributaries, for irrigation and for the development of hydro-electric energy. They made

Before June 30, 1906, but long after the initiation by posting and recording of the rights of plaintiff’s predecessors in interest, and long after their first work under those rights had actually been prosecuted, the city of Los Angeles eon

It was the language of this act, with other circumstances not necessary to particularize, which conveyed the knowledge that the government would abandon its proposed reclamation project. Thereupon respondent’s predecessors in interest in June, 1906, resumed work under their notices and continued this work (interrupted only by the snows of winter) until shortly after the commencement of this action on July 15, 1907. At that time there was in the codes of this state a section (Civ. Code, sec. 1416) providing in effect that where litigation becomes necessary under such enterprises as this to acquire land or rights, “then the party so appropriating, or his assigns, shall have sixty days after the determination of legal proceedings by final judgment in which to commence to excavate or construct the works in which he intends to divert the water.” Respondent and its 'representatives ceased work under the guaranty of protection extended by this law. Its provisions in this regard, however, were repealed, at least by implication, by section 4 of the Water Power Act of April 8, 1911 (Stats. 1911, p. 813). Following the passage of this act, on or about August 1, 1911, respondent resumed work and continued this work until the date of the trial of this action. This latter work was in part actual construction work and in part was surveying. '

In the action which it brought, this respondent set up its asserted rights to the waters of these streams for the purpose of irrigation as well as for the purpose of developing hydroelectric energy. In this another corporation was interested. There resulted a tripartite agreement between the city and respondent and the third corporation, under which the asserted right to the use of the water for purposes of irri

This statement, incomplete in itself, is designed only as an aid to an understanding of the single question necessary to be considered on this appeal. That question may be thus stated: What effect u-pon the original appropriators’ rights was worked by the executive orders of withdrawal and the act of Congress operating with the laws of this state?

As its answer necessitates the construction of federal laws, the interpretation which the United States has put upon those laws is of all-controlling force. The federal law under which the original locators were admittedly acting is that found in section 2339 of the Revised Statutes of the United States, approved July 26, 1866, [U. S. Comp. Stats. 1916, sec. 4647]. Notwithstanding its familiarity, it may be well to quote it in part: “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 right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed.” It is to be noted that the “rights” which are dealt with are, first, rights which have “vested and accrued,” and, second, rights which are recognized as such “by the local customs, laws and the decisions of courts. ’ ’ Conceding that the work done up to the time of the suspension.of it under the withdrawal orders was sufficient to fulfill the requirements of our state law (Civ. Code, secs. 1415, 1416), it is undisputed that this work was not completed. The first legal question then is, What is the nature of the rights which the original locators had acquired up to and at the time of the

“So far as the public land is concerned, over or through which these ditches for the canal were dug, the statutes above cited create no title, legal or equitable, in the individual or company that simply takes possession of such land. The government enacts that anyone may go upon its public lands for the purpose of procuring water, digging ditches for canals, etc., and when rights have become vested and accrued which are recognized and acknowledged by the local customs, laws, and decisions of courts, such rights are acknowledged and confirmed. Under this statute no right or title to the land, or to a right of way over or through it, or to the use of water from a well thereafter to be dug, vests, as against the government,' in the party entering upon possession from the mere fact of such possession, unaccompanied by the performance of any labor thereon.

“Undoubtedly rights as against third persons are acquired by priority of possession, and the government will and does recognize such rights as between those parties. This is the principle running through the cases cited by the counsel for appellants. In Sullivan v. Northern Spy Mining Co., 11 Utah, 438 , [ 30 L. R. A. 186 , 40 Pac. 709 ], which is one of those cases, the priority of possession of the person who entered upon the public land and dug the well was recognized as thereby making a superior title to the use of the water from the well over that acquired by a person who was the subsequent purchaser of the land from the government. In that ease the well had been dug and the condition fulfilled. If no well had ever been dug, and a reasonable time for digging it had passed, the mere priority of possession would have given no superior title to the land over that acquired by the grantee from the government. It, is the doing of the work, the completion of the well, or the digging of the ditch, within a reasonable time from the taking possession, that gives the right to use the water in the well or the right of way for the ditches of the canal upon or through the public land. Until the completion of this work, or, in other words, until the performance of the condition upon which the right to forever

maintain possession is based, the person taking possession has no title, legal or equitable, as against the government. What, if any, equitable claims a party might have upon the government who did a large amount of work, but finally failed to complete the necessary amount to secure the water or right of way, it is not necessary to determine or discuss. Those equities would not, in any event, amount to an equitable title to the right of way or to the use of the water, and so need not be here considered.”

In United States v. Richey Land & Cattle Co., 164 Fed. 496 , Rickey had taken appropriate steps to secure a reservoir site on the public domain, had purchased works of considerable value for the purpose of diverting waters into the reservoir site and was actually engaged in the construction of a tunnel to lead the waters from the reservoir for useful distribution, when the lands affected by his work were temporarily withdrawn, as here, by the Secretary of the Interior for reservoir purposes. Rickey proceeded with the work under the contention that against the United States government he had acquired the vested right so to do. The government sought injunction under its bill, setting forth the facts, and the defendant, successor in interest to Rickey, demurred. The demurrer was overruled, the circuit court in so doing and in discussing the question saying: “It is very clear that no one can under these sections acquire as against the government a vested easement in and to public lands for a reservoir site until the actual completion of the reservoir, so that the waters to be impounded therein could be applied to the beneficial uses contemplated by the irrigation system of which it forms a part. This was the construction placed upon these sections by the supreme court in Bear Lake Irr. Co. v. Garland, 164 U. S. 1 ,18,19, [ 41 L. Ed. 327 , 17 Sup. Ct. Rep. 7 ].”

There can be no argument so sharp as to whittle down the obvious and controlling meaning of the language of these decisions which we have quoted. That language imports this, and nothing but this, that until the completion of the work no title, legal or equitable, vests in the appropriator, no right vests which the government of the United States is compelled to recognize. The property rights which do accrue are such as to protect the appropriator from the acts of all persons saving the paramount authority. So far as the United

Before completion, what may the United States do? It may do as in the case of oil lands it has done, by withdrawals arrest all work before discovery, without compensation to the locator for his expenditures. (United States v. Mid West Oil Co., 236 U. S. 459 , [ 59 L. Ed. 673 , 35 Sup. Ct. Rep. 309 ].) Congress, it is to be remembered, under the Constitution of the United States, has the sole power of disposition and control of the public lands. (U. S. Const., art. IV, see. 3, subd. 2.) In contemplation of this power, the respondent’s argument that the orders of withdrawal in this case were temporary orders, that they operated only to suspend and not to destroy the rights of the original locators, and that those rights were revived in all their fullness upon the formal vacation of the orders of withdrawal loses all force in view of the congressional exercise of the power to which we have adverted. Congress, had it chosen to do so, without any order of withdrawal having been made by the executive department, could have granted the lands and rights to the city of Los Angeles, as in fact it did, during the existence of the orders of withdrawal. It may be conceded that to have done so would have been a harsh exercise of the power, but this concession can have no effect upon the legality of its exercise. So here the legal situation presented is, and this statement of it is made in the light most favorable to respondent, that before respondent’s predecessors in interest had acquired any vested right in the lands against the United States, Congress, in the exercise of its supreme authority, made conveyance to the city of Los Angeles of the lands and of the waters in connection therewith for all the purposes for which they were designed to be used by the original appropriators. It must be held that these appropriators and all others upon the public domain act with the knowledge and under the peril to their ventures that this may be done. The property rights which they acquire while working and before those rights have become vested as against the government of the United States are held, as it were, upon condition, in that they are liable to extinguishment at any time by an act of Congress directed to that end.

Shaw, J., Sloss, J., Melvin, J., Lawlor, J., and Angellotti, C. J., concurred.