Desert Land Entrymen Whose Entries are Dependent Upon Percolating Waters for Reclamation


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Source: 84th Congress, 1st Session, House, Report No. 1084


July 7, 1955.—Committed to the Committee of the Whole House on the State of the Union and ordered to be printed


Mr. Engle, from the Committee on Interior and Insular Affairs, submitted the following REPORT [To accompany H. R. 4308]

The Committee on Interior and Insular Affairs, to whom was referred the bill (H. R. 4308) for the relief of desert land entrymen whose entries are dependent upon percolating waters for reclamation, having considered the same, report favorably thereon with amendments and recommend that the bill do pass.

The amendments are as follows:

Page 1, line 10, strike the word ‘‘States’’ and insert in lieu thereof the words ‘‘the State of Arizona’’.

Page 1, line 12, change the period to a comma and add the words ‘‘but are usable under State law for irrigation and reclamation purposes.’’

H. R. 4308 was introduced by Mr. Udall. An identical bill was introduced by Mr. Rhodes.

PURPOSE

The Desert Land Act of March 3, 1877, requires that the right of desert land entrymen to the use of water for reclaiming their entries ‘‘shall depend upon bona fide prior appropriation.’’ This bill, if enacted, would waive this requirement in the case of all desert land entries which have heretofore been allowed in the State of Arizona and which are dependent upon percolating waters for their reclamation. As introduced, the legislation would have been applicable to all States under the laws of which percolating waters are not subject to the doctrine of prior appropriation. On the basis of testimony that desert land entries in Arizona were the only ones presently involved, the legislation was amended by the committee to make it applicable only to the State of Arizona.


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NEED

As a result of a recent decision by the Supreme Court of Arizona with respect to the law of that State governing percolating waters, a question has arisen with respect to the meaning of this ‘‘water rights’’ provision of the Desert Land Act and its effect on desert land entries in the State of Arizona. The Arizona Supreme Court's decision that percolating waters in that State are not subject to the doctrine of prior appropriation raised the question of whether such desert land entries dependent on percolating waters could be patented. The Acting Solicitor of the Department of the Interior has rendered an opinion holding that such entries cannot be patented under the Desert Land Act. This means that approximately 158 desert land entries currently subsisting in Arizona could not be patented and therefore the entrymen would lose the fruits of their labor and expenditures. This bill would waive the ‘‘water rights’’ provision in the original act for these 158 desert land entries and would permit them to be patented. The entrymen would remain subject to the requirements of the Desert Land Act in all other respects. The bill applies only to existing entries and would not permit future desert land entries to be made in Arizona which are dependent on percolating waters.

DEPARTMENT'S REPORT

The Department's report on the legislation recommending its enactment follows:

Department of the Interior, Office of the Secretary, Washington 25, D. C., April 15, 1955.

Hon. Clair Engle, Chairman, Committee on Interior and Insular Affairs, House of Representatives, Washington 25, D. C.

My Dear Mr. Engle: This is in reply to your request for the views of this Department on H. R. 4308, which is identical to H. R. 4303, a bill for the relief of desert land entrymen whose entries are dependent upon percolating waters for reclamation.

I recommend that H. R. 4308 or H. R. 4303 be enacted.

Section 1 of the Desert Land Act of March 3, 1877 (43 U. S. C., 1952 ed., sec. 321), requires that the right of desert land entrymen to the use of water for reclaiming their entries ‘‘shall depend upon bona fide prior appropriation.’’ H. R. 4308, if enacted, would waive this requirement in the case of all desert land entries which have heretofore been allowed and are subsisting on the effective date of the statute, which are dependent upon percolating waters for their reclamation, and which are situated in States under the laws of which the percolating waters upon which the entries are dependent are not subject to the doctrine of prior appropriation.

During the past year, a question has arisen in the Department with respect to the meaning of this provision of the Desert Land Act and its effect upon desert land entries in the State of Arizona which are dependent for irrigation upon percolating waters; i. e., underground water which does not flow in a well-defined channel with banks. The question arose primarily as a result of a recent decision by the Supreme Court of Arizona with respect to the law of the State governing percolating waters. In that decision, Bristor v. Cheatham (75 Ariz. 227, 255 P. 2d 173), decided on March 14, 1953, the Arizona court held that percolating waters in that State are not subject to the doctrine of prior appropriation but are subject only to the doctrine of reasonable use.

The Bristor decision raised the question whether desert land entries for lands in Arizona could be allowed or patented where such entries are dependent on percolating waters for reclamation. The question was referred to the Acting Solicitor of the Department who has rendered an opinion holding that such entries cannot be allowed or patented under the Desert Land Act since the right of


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the entrymen or the applicants for entry to use percolating waters does not depend upon prior appropriation. A copy of the Acting Solicitor's opinion M-36263, dated February 23, 1955, is attached. It discusses the problem in detail.

According to the Bureau of Land Management of this Department, there are approximately 158 desert land entries in Arizona which have been allowed and are currently subsisting but which are dependent on percolating waters for reclamation. The entries were applied for in good faith and the entrymen have apparently made expenditures and performed work with a view to securing patents to the entries. In many cases the expenditures have been substantial. However, under the law as set forth in the Acting Solicitor's opinion, the entries cannot go to patent so long as the percolating waters on which they are dependent are not subject to appropriation. This means that in time, as the statutory life of the entries expires, the entrymen will lose the fruits of their labor and expenditures. Immediately, because of this prospect, the entrymen are uncertain as to whether to proceed with their work on the entries.

In these circumstances, it seems only fair and equitable that the entrymen should be allowed to perfect their entries regardless of the requirement in the Desert Land Act that they have a water right dependent upon prior appropriation. H. R. 4308 would accomplish this purpose. It would simply waive in the case of these entries the requirement that the right to use of water depends on prior appropriation. In all other respects, such as reclamation and expenditures, the entrymen would remain subject to the requirements of the Desert Land Act.

The problem under consideration has so far arisen only in Arizona. H. R. 4308 has, however, been drawn on a general basis and would thus take care of any similar problem in other States to which the Desert Land Act applies.

It should be noted that the bill applies only to existing entries which have been allowed. The bill will not permit future desert land entries to be made in Arizona which are dependent on percolating waters. Whether broader legislation should be enacted is a matter on which the Department takes no position at this time. The Department's immediate concern is in affording relief to existing entrymen who have an immediate problem on their hands, and the Department urges that such relief be granted without delay.

The Bureau of the Budget has advised that there is no objection to the submission of this report to your committee.

Sincerely yours, Orme Lewis, Assistant Secretary of the Interior. M-36263 February 23, 1955.

Validity of Desert Land Applications and Entries in Arizona Dependent on Percolating Water for Reclamation

Desert land entry: Water right

When Congress provided in the Desert Land Act that the right to use of water by the entryman ‘‘shall depend upon bona fide prior appropriation,’’ Congress used the words ‘‘prior appropriation’’ as words of art having reference to the well-established doctrine of prior appropriation then obtaining in the Western States and Territories.

Desert land entry: Water right

Whether water is subject to prior appropriation as required in the Desert Land Act is a matter governed by State law.

Water and water rights: State laws

Under the second opinion of the Arizona Supreme Court in the case of Bristor v. Cheatham, percolating waters are not subject to the doctrine of prior appropriation but only to the doctrine of reasonable use.

Desert land entry: Water right

Applications for desert land entries in Arizona cannot be allowed, and allowed desert land entries in that State cannot be patented, where the entries are dependent upon percolating waters for reclamation.


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Department of the Interior, Office of the Solicitor, Washington 25, D. C., February 23, 1955.

Memorandum. To: Director, Bureau of Land Management. From: Acting Solicitor. Subject: Validity of desert land applications and entries in Arizona dependent on percolating water for reclamation.

You have requested my opinion as to whether, in view of the decision by the Supreme Court of Arizona in the case of Bristor v. Cheatham (75 Ariz. 227, 255 P. 2d 173 (1953)), applications for desert land entries in that State can be allowed or allowed desert land entries in that State can be patented where reclamation of the entry depends upon percolating water.

As the term ‘‘percolating water’’ is used in your request and this opinion, it means underground water which does not comprise or is not part of an underground stream which has a well-defined channel and banks and a current.

Section 1 of the Desert Land Act of March 3, 1877 (43 U. S. C., 1952 ed., sec. 321), provides in part as follows:

The answer to your question depends upon the interpretation to be given to the specific portion of the quotation from the act which requires that ‘‘the right to the use of water by the person so conducting the same * * * shall depend upon bona fide prior appropriation.’’

In California Oregon Power Co. v. Beaver Portland Cement Co. (295 U. S. 142 (1935)) the United States Supreme Court held that a homestead patent issued in 1885 for land bordering on a stream did not carry with it the common law riparian right to have the stream flow by the land in its accustomed channel without substantial diminution. This holding was based on the Court's interpretation of the provision of section 1 of the Desert Land Act following the clause just quoted and beginning with ‘‘and all surplus water,’’ etc. Although the Court was not directly concerned with the clause under consideration here, it discussed at length the background of the Desert Land Act and made a number of statements which are very illuminating with respect to the point at issue. The more significant statements follow:

These extracts from the Power Co. case leave little doubt that the rule of prior appropriation was a well-established doctrine of water law in the Western States


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and Territories at the time the Desert Land Act was passed and that, when Congress provided in the act that the right to use of water by a desert land entryman ‘‘shall depend upon bona fide prior appropriation,’’ Congress used the words ‘‘prior appropriation’’ as words of art having a clear and precise meaning.

The question then presents itself whether the right to appropriate water for the reclaiming of a desert land entry is a matter governed by State law or Federal law. The Power Co. case provides the answer. The Court stated in that case:

It is clear then that whether a desert land entry in Arizona can be based upon percolating water depends upon whether, under the law of Arizona, percolating water is subject to the doctrine of prior appropriation.

This question was settled only relatively recently in the case of Bristor v. Cheatham, supra. To appreciate the full significance of that case, a brief consideration of the history of the Arizona law on percolating water is necessary. The first pronouncement by the Arizona Supreme Court on the subject of percolating water apparently was in the case of Howard v. Perrin (76 Pac. 460 (1904), aff'd 200 U. S. 71 (1906)). In that case, the court stated that percolating water, as distinguished from water in an underground stream, belonged to the owner of the soil and was not subject to appropriation by another.

In Maricopa County Municipal Water Conservation District No. 1 et al. v. Southwest Cotton Co. et al. (4 P. 2d 369 (1931)), the Arizona court decided to treat the subject of underground water as a matter of first impression. In a lengthy opinion, the court concluded that

Then came the case of Bristor v. Cheatham. This was an action by the plaintiffs to restrain the defendants from diverting water which the plaintiffs were pumping from domestic wells on their property. The plaintiffs alleged as a first count that the defendants had sunk a number of large wells on defendants' property to a common source of underground water underlying the lands of both and were pumping and conveying the water 3 miles distant to reclaim other land owned by the defendants, and that this withdrawal of water was drying plaintiffs' wells. In the second count, the plaintiffs alleged that the waters from which their wells were supplied were taken from an underground stream. The action was dismissed on both counts by the lower court.

When the case came before the Supreme Court of Arizona, the court first held on January 12, 1952, that its ruling in Howard v. Perrin was dictum and contrary to the Desert Land Act; it overruled that case and held that percolating waters are subject to the doctrine of prior appropriation (Bristor v. Cheatham, 240 P. 2d 185). A rehearing was granted, following which the court reversed itself on March 14, 1953 (255 P. 2d 173). The court said:

The court went on to hold that the owner of land overlying percolating water has a right to use the water subject to the doctrine of reasonable use, as distinguished from the doctrine of correlative rights. Under the latter doctrine, a landowner would be limited to his proportionate share of the percolating water underlying his land and the lands of his neighbors. Under the doctrine of reasonable use, a landowner may use, without any liability to an adjoining user, as much of the percolating water as he can reasonably put to a beneficial use on his land even though it exceeds his proportionate share of the water. (See 55 A. L. R. 1385 and 109 A. L. R. 395.)

It is plain from the two opinions in the Bristor case that the doctrine of prior appropriation is diametrically opposed to the doctrine of reasonable use. Under the first doctrine, a prior appropriator acquires a legal right to a definite quantity of water which cannot be diverted by any subsequent appropriator even though the latter could put the water to a beneficial use. Under the second doctrine, a prior user of water acquires no right to the quantity of water used. Any subsequent user of water, by drilling a larger well or installing a more powerful pump, can, without liability, drain him dry so long as the water is put to a beneficial use by the subsequent user.

I find it impossible therefore to interpret the clause in the Desert Land Act which requires that ‘‘the right to the use of water * * * shall depend upon bona fide prior appropriation’’ as encompassing the doctrine of reasonable use as set forth in the second Bristor opinion.

The Department's regulations do not sanction the allowance or patenting of a desert land entry which depends upon percolating water which is subject only to the doctrine of reasonable use. The pertinent regulations currently in effect (43 C. F. R. 232.13; 19 F. R. 9084), which has been unchanged since its adoption on May 18, 1916 (Circ. 474, 45 L. D. 345, 351), provides in part as follows:

‘‘Sec. 232.13 Evidence of water rights required with application. No desert-land application will be allowed unless accompanied by evidence satisfactorily showing either that the intending entryman has already acquired by appropriation, purchase, or contract a right to the permanent use of sufficient water to irrigate and reclaim all of the irrigable portion of the land sought, or that he has initiated and prosecuted, as far as then possible, appropriate steps looking to the acquisition of such a right. * * * All applications not accompanied by the evidence above indicated will be rejected.’’

The requirement in the regulation is clear that an applicant must acquire, or take steps to acquire, a legal right to the permanent use of sufficient water to reclaim his entry. The same requirement is stated in the regulation dealing with the submission of final proof (43 C. F. R. 232.32; 19 F. R. 9086).

As we have seen, a landowner has no legal assurance of a permanent supply of water under the doctrine of reasonable use. His ‘‘right’’ to use percolating water, unlike the right of a prior appropriator, is always subject to diminution or abrogation by a subsequent user of the water.

It is my opinion, therefore, upon the basis of the Desert Land Act and the second opinion of the Supreme Court of Arizona in Bristor v. Cheatham, that an application for a desert land entry on land in Arizona cannot be allowed, and that a patent cannot be issued for such an entry which has been allowed, where the entry is dependent upon percolating water for reclamation.

J. Reuel Armstrong, Acting Solicitor.

COMMITTEE'S RECOMMENDATION

The Interior and Insular Affairs recommends that H. R. 4308, as amended, be enacted.

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