The Caldwell tribune. [volume] (Caldwell, Idaho Territory [Idaho]) 1883-1928, 1910-02-25
RESERVOIR CASE
DECIDED BY court

ULOADLD III OOOA 4
In a suit brought to enforce a for
fixture of the title of a reservoir site
located on public land, on account of
an alleged breach by the grantee of a
condition subsequently embraced in
the original grant, Judge F. S. Die
trich Monday held that forfeiture
could be declared by the United States
courts and that additional legislation
by congress is not necessary to execute
such forfeiture, although the original
act provided for such a grant may
have been incomplete.
The decision was in the case of the
United States of America VS.. Mamie
L. Whitney, as executor of the estate
of Grant L. Whitney, deceased, involv-
ing a reservoir site in Canyon county
on which Whitney made a filing De-
cember IS, 1899, and which the recla-
nation service now seeks in connec-
ton with the Payette-Boise project.
Counsel for the Whitney heirs con-
tended that they had not been per-
mitted to go ahead with construction
work on account of extraordinary con-
ditions or pending litigation.
The case is viewed with particular
Importance by the officers of the rec
lamation service who, it is understood
propose to institute a number of sim
liar cases in connection with Idaho
projects.
The action was instituted on the
ground that under the filing procured
by Whitney and which was approved
and Endorsed by the secretary of the
interior department October 10, 1900,
no construction work had been done
on the proposed power project and
that he had not complied with the
provisions of the statute which pro-
vides: "That if any section of said
canal or ditch shall not be completed
within five years after the location of
said section the rights herein granted
shall be forfeited as to any uncom-
pleted section of said canal, ditch or
reservoir, to the extent that the same
is not completed at the date of for
feiture."
FORFEITURE DECLARED.
This requirement being in ma
ture Of a condition subsequently," the
court state, the rule undoubtedly is
that failure to comply Herewith does
not operate (ipso facto) to divest the
grantee of the title and reinvest the
grantor Herewith, but that to be eff
fectual the default must be followed
with a declaration of forfeiture by
some competent authority; and that
the grant here being of a public ma
ture, such declaration can be made
only by an act of congress, or in ap-
propriate judicial proceeding.
ain the present case there has been
no congressional action looking to the |
enforcement of the forfeiture, and the |
only expression of the legislative will |
is to be found in the provision already |
quoted from the original grant. The
precise question submitted is: Was it |
for the attorney general to
institute this proceeding and is this
court authorized to enforce the for
teiture by finding the breach and de-
freeing restoration of the estate"
The court after quoting a number
IF decisions continues:
Maintaining that the executive de-
partment is powerless to institute such
proceeding until congress shall have
expressly conferred special authority
therefore, the defendant attaches
great significance to that fact that in
referring to judicial declarations of
forfeiture, the supreme court, in the
'ases cited, almost invariably speaks
II such actions not merely as judicial
proceedings, but as judicial proceed
ngs authorized by law"