U.S. Supreme Court ICKES V. FOX , 300 U.S. 82 (1937)

300 U.S. 82

ICKES, Secretary of the Interior,v. FOX et al.*

SAMEv. PARKS et al.

SAMEv. OTTMULLER.

Nos. 266-268.

Argued Jan. 6, 1937.Decided Feb. 1, 1937.

As Amended on Denial of Rehearing March 1, 1937.

[ Ickes v. Fox 300 U.S. 82 (1937) ]

[Page 300 U.S. 82 , 90]

and methods of payment being stipulated in detail; that rights to water where the same have vested were to be defined, determined, and enjoyed in accordance with the Reclamation Act and other acts of Congress on the subject of the acquisition and enjoyment of such rights, and by the laws of the state of Washington.

Some time after the execution of the foregoing contract, the predecessors in title of respondents, upon officially-approved forms, made applications for water rights for the irrigation of the lands here involved. By the terms of the applications, the measure of the water right for the land was stated to be that quantity which shall be beneficially used for the irrigation thereof, not exceeding the share proportionate to irrigable acreage of the water supply actually available, to be paid for ( in ten annual installments) in an amount which was fixed in each application. [Footnote 1] The applicants agreed that the construction charge and the annual charges for operation and maintenance should be and were made a lien upon the lands and all water rights then or thereafter appurtenant or belonging thereto, together with all improvements thereon.

[Page 300 U.S. 82 , 94]

were 'to be and remain appurtenant to the land.'3 Moreover, by the contract with the government, it was the land owners who were 'to initiate rights to the use of water,' which rights were to be and 'continue to be forever appurtenant to designated lands owned by such shareholders.'

Respondents had made all stipulated payments and complied with all obligations by which they were bound to the government, and, long prior to the issue of the notices and orders here assailed, had acquired a vested right to the perpetual use of the waters as appurtenant to their lands. Under the Reclamation Act, supra, as well as under the law of Washington, 'beneficial use' was 'the basis, the measure, and the limit of the right.' And by the express terms of the contract made between the government and the Water Users Association in behalf of respondents and other shareholders, the determination of the Secretary as to the number of acres capable of irrigation was 'to be based upon and measured and limited by the beneficial use of water.' Predecessors of petitioner, accordingly, had decided that 4.84 acre feet of water per annum per acre was necessary to the beneficial and successful irrigation of respondents' lands; and upon that decision, for a period of more than twenty years prior to the wrongs complained of, there was delivered to and used upon the lands that quantity of water. [Footnote 4] 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

[Page 300 U.S. 82 , 97]

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, of which the following are examples: Noble v. Union River Logging R. Co., 147 U.S. 165, 171, 172, 176; Philadelphia Co. v. Stimson, 223 U.S. 605, 619, 344; Goltra v. Weeks, 271 U.S. 536, 544, 615, 616; Work v. Louisiana, 269 U.S. 250, 254, 94; Payne v. Central Pac. Ry. Co., 255 U.S. 228, 238. These decisions cite other cases to the same effect. The recognized rule is made clear by what is said in the Stimson Case: 'If the conduct of the defendant constitutes an unwarrantable interference with property of the complainant, its resort to equity for protection is not to be defeated upon the ground that the suit is one against the United States. The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully invaded. * * * And in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process. * * * 'The complainant did not ask the court to interfere with the official discretion of the Secretary of War, but challenged his authority to do the things of which complaint was made. The suit rests upon the charge of abuse of power, and its merits must be determined accordingly; it is not a suit against the United States.'

The decree of the court below is affirmed.

Affirmed. Footnotes

[Footnote *] Rehearing denied 300 U.S. 640, 81 L.Ed. Ä-.

Footnote 1 In the Parks Case the quantity of water applied for was stated to be three acre-feet of water per annum per acre, or as much more as will be required to successfully irrigate the land. In the Ottmuller Case the quantity was stated to be three acre-feet of water per annum per acre, or so much thereof as shall constitute the proportionate share per acre from the water supply actually available for the lands under the project.

Footnote 2 'The right to the use of water acquired under the provisions of the reclamation law shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.' Act of June 17, 1902, c. 1093, 8, 32 Stat. 388, 390, Title 43 U.S.C. 372 (43 U.S.C.A. 372).

Footnote 3 'The right to the use of water which has been applied to a beneficial use in the state shall be and remain appurtenant to the land or place upon which the same is used.' Laws of Wash., 1917, c. 117, 39, p. 465, Laws of Wash., 1929, c. 122, 6, p. 274, Rem.Rev.Stat. 7391, vol. 8, p. 425.

Footnote 4 In the Parks Case and in the Ottmuller Case, the quantity of water thus determined and delivered and used was 6 acre feet and 5.56 acre feet of water per acre per annum, respectively.