The Twin Falls times. [volume] (Twin Falls, Idaho) 1905-1916, 1908-07-23
STATE ONLY AGENT
IN @CARfY" LANDS
Federal Government Grantor In
All Public Lands
"CAREY ACT" DOES NOT HOLD
AGAINST A PRIOR FILING
Judge Walters Decides That COulees
Are Not Natural Outlets for Water
Decision in Ditch Case.

DCClSlOu III DllCu OuScs
IN THE. DISTRICT COURT OF THE
FOURTH JUDICIAL DISTRICT OF
THE STATE OF IDAHO IN AND
FOR TWIN FALLS COUNTY.
A. B. Beverlin, Plaintiff, VS.. Henry
Workman, defendant.
This case, at the trial, resolved it.
self into three questions for determin-
alton, as follows:-
LIST. Has, under the facts of this
case, the plaintiff right of way for
a ditch over and across defendants
land?
End. Has the defendant legal
right to flow the waste water from his
land across the land of the plaintiff
using certain natural depressions, To-
cally called "coulees" as a means of
conduit?
3rd Has plaintiff an interest in a
certain flume situated on defendants
land?
From the evidence it appears with
out dispute that plaintiff built and
constructed certain ditch at the
trial designated on the maps used as
Ditch B" when the egal subdivision
upon which it was constructed was
public domain and prior to the date
that the defendant filed upon said
land. F-.-.-9---~--.S s.4- a. sst, si.e.ss
If at the time plaintiff constructed
said ditch "B" upon said unoccupied
government land, he had initiated or
procured to himself, under the laws of
Idaho right to the use of water to
be diverted or conducted by said ditch
then the laws of the United States give
to plaintiff the right of way for such
ditch apd said land with an easement
for such right of way, no matter into
whose hands, nor how soon, the
ownership of the land may afterwards
fall. &c
Rev. st. u. S. Sec. 2339- 2340.
Jennings VS.. Kirk SO U. S. 453. as
Border VS.. Water Co. 101 U. S. 274
Counsel for defendant seeks to
evade the terms of the we'll known
provision of the United States stat
utes. by urging that in as much as
prior to the construction of said ditch
in question the land had been with
drawn from entry except under the
provisions of the Carey Act" that
perforce the State of Idaho had title
in some measure to said land and it
was not unoccupied public land and
not subject to the section of the Uni
ted States statutes above referred to.
l am thoroughly convinced there is
no merit in this view, and that land
segregated from entry except Under
the provisions of the ''Carey Act" and
in filing upon which, and in making
proof required, settler deals entire
ly with the State, is still unoccupfed
public domain and is subject to all of
the provisions of law relative to unoc-
cupied public land except as to the
manner of acquiring it's title and that
is regulated by the Carey Act"
In disposing of Carey Act Land
the national government deals with
the settler upon such land through the
State and an agent, but the United
States is still the principal in the
transaction, and the settler gets his
title from the government to the State
and from the State to the settler. The
so called "Carey Act" land is in no
wise or manner State land.
The next question is, has defendant
Workman legal right to use certain
natural depressions locally designated
as "coulees' which traverse the land
of plaintiff Beverlin, for the purpose
of carrying off the waste water from
defendants land?
The testimony indicated that this
"coulee' was not natural water
course, but a depression made by the
contour of the land aud in which. sur
face water flowed during the spring
rains and the time of melting SHOWS.
If the "coulee" in question in this
case is natural water course, that Is
stream of water usually therein and
flowing in a particular direction, with
we'll defined channels and banks,
plaintiffs land would not he injured
by the flow Of water in such "coulee'
from the defendants land, but nat
ural water course does not include
a depression in the land which con-
veys water only In the time of heavy
rains and water that may accumulate
from melting SHOWS.
If at the time plaintiff herein selec-
ted and filed upon his land he found
a stream of water flowing across the
same or a depression that conveyed
water from some natural source dur
ing the greater part of the year, the
law will presume that he SO selected
his land with the fact in mind that his
land was burdened with the flow OF
a stream of water, and It defendant
waste water did not SO augment the
natural flow to an extent that damaged
plaintiff, then defendant would have