KOELSCH, Circuit Judge.
The United States, complaining that Roy Hunter persistently grazed and watered his cattle within the boundaries of the Death Valley National Monument without a permit from the National Park Service, brought this suit against him in the United States District Court to secure an injunction against further trespasses.
The District Court found that:
Despite these favorable findings, the court concluded that Hunter possessed no rights either to the waters or in the lands and granted an injunction. Hunter has appealed.
1. The Water Right:
The trial court in the instant case concluded that "* * * no legal basis for the acquisition of an appropriation to water by virtue of local customs, laws or decisions of California has been established." We believe that the District Court misconstrued the applicable local authority and that Hunter did establish a legal basis for the acquisition of an appropriation to water by virtue of local decisions.
It is clear that Hunter need prove the appropriative right only by local customs, laws or decisions, for "[t]he union of the three conditions in any particular case is not essential to the perfection of a right by priority." Basey v. Gallagher, 20 Wall. 670, 684, 87 U.S. 670, 684, 22 L.Ed. 452 (1874). The local customs regarding proprietorship by appropriation have long since become crystalized into law by judicial decision or statute. As Mr. Weil notes in his work entitled Water Rights in the Western States, vol. 1, § 635 (3d ed. 1911):
In 1872 the California Legislature enacted statutes providing for the appropriation of public waters; but the Supreme Court of that State held that the statutory method was not exclusive:
Lower Tule River Ditch Co. v. Angiola Water Co., 149 Cal. 496, 499, 86 P. 1081, 1082 (1906); See also Duckworth v. Watsonville Water and Light Co., 158 Cal. 206, 211, 110 P. 927, 929-930 (1910). Thus it was not incumbent upon Hunter to establish compliance with a positive provision of California law and furthermore no statute precluded his claim.
Judicial authority makes the law on appropriation quite clear. Justice Field, commenting upon the declaration of the California Supreme Court in Tartar
To constitute an appropriation, therefore, there must co-exist "the intent to take, accompanied by some open, physical demonstration of the intent, and for some valuable use." McDonald & Blackburn v. Bear River and Auburn Water and Mining Co., 13 Cal. 220, 232-233 (1859). The outward manifestation is most often evidenced by a diversion of the water from its natural source prior to the use; [Simons v. Inyo Cerro Gorda Mining & Power Co., 48 Cal.App. 524, 192 P. 144 (1920) hearing denied by California Supreme Court, 48 Cal.App. 541, 192 P. 152 (1920)] but it also can be evidenced in other ways, for example, as in this case, by watering livestock directly from the source [Steptoe Livestock Co. v. Gulley, 53 Nev. 163, 295 P. 772 (1931)] or as in other cases by placing water wheels into a stream in order to use the flowage as power to operate a mill located on the bank. Ortman v. Dixon, 13 Cal. 33 (1859); Tartar v. Spring Creek Water and Mining Co., supra.
In this case there is no lack of proof of the asserted appropriation; to the contrary, a clearer showing could hardly be imagined. The Hunters' intent to use the water is made plain by the evidence. Year after year for nearly a century they have pastured their livestock in this isolated enclave, surrounded by miles of impassable desert; except for the water provided by these springs and the stream, there has been none other available to keep their animals alive.
Their intended (and actual) use has been for a beneficial purpose, as the trial court specifically found. Indeed a contrary finding could hardly have been justified, particularly since cattle watering has been judicially recognized in California as "a reasonable beneficial use." Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 561, 81 P.2d 533, 563 (1938).
And their use has been prior in point of time to that of any other person; indeed it appears that few people have ever ventured into this desolate area and there have never been any users other than the Hunters.
We believe that a legal basis for the acquisition of an appropriation to water by virtue of local decisions has been established. On the basis of the facts found by the district court, we conclude that Hunter's predecessors must be deemed to have appropriated these waters; that the right is the equivalent of a grant of the use of the waters from the federal government; and that it is entitled to protection.
2. The Grazing Right:
Whether this "grant" carried with it an easement to graze is a question readily answered. Hunter's contention is based upon the well-settled rule that the grant of a right in real property includes all incidentals possessed by the grantee and without which the property
Turning to the statutory provisions, we are mindful that the Act of 1866 specifies that appurtenances shall consist of the "right of way for the construction of ditches and canals" and that its companion, the Act of 1870, Rev.Stat. § 2340 (1875), 43 U.S.C. § 661, para. 2 (1964), formerly Act of July 9, 1870, ch. 235, § 17, 16 Stat. 218, makes patents issued to persons other than the appropriator subject to "rights to ditches and reservoirs used in connection with such water rights * * *." These provisions are specific and there is no other language that suggests the public lands are to be encumbered by additional or other easements.
However, not being bound by the "bare words" of the provisions [Lynch v. Overholser, 369 U.S. 705, 710, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962)] we have investigated further to ascertain whether, despite this literal language, Congress meant to include a right of way such as the one claimed in this case.
Historically the general government tacitly allowed and encouraged all persons to use the open range as a public common. Buford v. Houtz, 133 U.S. 320, 10 S.Ct. 305, 33 L.Ed. 618 (1890). The provision in the Act of 1866, recognizing a right of way for ditches and canals needful to conduct appropriate water from the public domain constituted a limitation on the otherwise free use of those lands. We have found nothing to indicate that Congress intended to impose a greater limitation than those of the type specifically mentioned in the Act itself. We agree with the Eighth Circuit that:
Utah Light & Traction Co. v. United States, 230 F. 343, 345-346 (8th Cir. 1915).
In sum, the judgment of the district court granting the injunction was correct and is affirmed. However, we conclude that, although Hunter is not entitled to an easement to graze livestock on the lands within the boundaries of the Monument, he should be allowed a right of way over those lands to divert the water by one of the methods contemplated by the statute.
If we simply modify the judgment to declare Hunter's water right and affirm the portion granting the injunction, the question of right of way will remain in limbo to plague the parties and the courts.
The judgment is affirmed in part, modified in part, and the cause is remanded with directions to proceed as directed herein.
No costs are allowed.
The unauthorized pasturing of cattle upon the lands within the Monument is a tort and the trespass, being wilful and continuous, is an injury for which an injunction may be granted. Mendelson v. McCable, 144 Cal. 230, 77 P. 915 (1904). It matters not that the act is made criminal for it also involves an invasion of a property right of the United States. Thus the question is not one of equitable jurisdiction but whether under the facts of this case the granting of injunctive relief constituted an abuse of the trial court's discretion. That it did not, seems manifest.
During the settlement of the Western United States it was the common practice of the immigrants and others to graze their livestock upon the public lands. The government acquiesced in this practice and,
Light v. United States, 220 U.S. 523, 535, 31 S.Ct. 485, 487, 55 L.Ed. 570 (1911).
Although the Hunters labored long and hard and went to some expense to put in and build access roads and several shacks upon the lands incidental to their livestock operations, they did so in the knowledge that they were mere squatters and that the government could and might at any time exercise its full proprietorship and dispossess them without payment of any compensation. Osborne v. United States, 145 F.2d 892 (9th Cir. 1944).
Many years ago, this court in Shannon v. United States, 160 F. 870, 876 (9th Cir. 1908), a case similar to the present one, answered the appellant's argument that an injunction would impose a "grievous burden" upon him with this quotation from Camfield v. United States, 167 U.S. 518, 525, 17 S.Ct. 864, 42 L.Ed. 260 (1896): "the inconvenience, or even damage, to the individual proprietor does not authorize an act which is in its nature a purpresture of government lands."
In attacking the injunction as to form, Hunter appears to labor under the assumption that Fed.R.Civ.P. § 65(d) applies to the injunction itself. He is mistaken. That rule in terms relates exclusively to the "order granting an injunction" in its requirement of a statement of "the reasons for its issuance." Here the requirement was met. The order for the injunction — as distinguished from the injunction proper — is embodied in the court's Finding of Fact and Conclusion of Law and therein appear the reasons for its issuance.