Randolph Land & Livestock Co. v. United States

CROCKETT, Justice. This proceeding arises out of a general determination of water rights in the Bear River which was initiated by the State Engineer. Certain livestock owners objected to claims which the government had filed for livestock watering rights based on the use by grazers on the public domain and permittees in the Cache National Forest. This appeal was taken from the trial court’s disallowance of their objections. Pursuant to statute,1 the State Engineer on July 13, 1942, petitioned the Rich County District Court to adjudicate the relative rights of all water users on the Bear [210] River and its tributaries. Subsequently the original petition was amended and in September 1948 the district court .entered an order for publication of notice to water claimants. The United States Forest Service and Bureau of Land Management filed numerous water claims as did the various objectors. After the proposed determination was published the appellants filed objections to all the government water claims, contending that the United States of America could not acquire rights to the use of water arising on government land where their claims are based on stock watering by private parties on the public domain from 1865 till 1906 and by permittees 'in the National Forest from 1906 up to the present time. The objectors claim that the government neither owned any of this livestock nor stood in privity with the owners. They further contend that stock watering rights can only be acquired by a livestock owner who makes beneficial use of the water. ■ , The district court held a hearing oh'the objections. A stipulation was entered into between the objectors and the government whereby the parties agreed that in each instance of appropriation of water by the United States from the same source of supply as the objectors, the final decree could show the objectors’ rights senior to those of the government. On the basis of this stipulation the district court held that no justiciable issue existed between the parties and entered an interlocutory decree dismissing the objections. The objectors appealed .from this decree, ■claiming that the United States could acquire no water rights whatever because it had not made beneficial use of the water. The United States, by'way of answer, moved to dismiss the appeal claiming that the general- determination was a suit against the government which, in the absence of Congressional waiver could not be maintained. The objectors in their reply claimed that this was not a suit against the government, that the United States voluntarily filed water claims and thus submitted themselves to the court’s jurisdiction, that subsequently the Attorney General of the United States authorized the U. S. Attorney for Utah to appear and represent the government interest. The government responded that the officials of the United States Forest Service and the Bureau of Land Management had no authority to file claims in this proceeding which might result in submitting federal water rights to a court adjudication nor had the Attorney General of the United States or any other official of the national government authority to submit the United States to the .jurisdiction of the Utah state courts in this matter: It is ■evident that unless jurisdiction was acquired over the United States of America .the district court could not adjudicate its water rights. Preliminary to ascertaining whether the district court obtained the requisite jurisdiction it is appropriate and [211] helpful to analyze the rights involved, the proceedings and the position of the parties. The rights to the use of water which are the subject matter of this suit have been characterized by this and other courts as an interest in real property. As we said in Cortella v. Salt Lake City, 93 Utah 236, 72 P.2d 630, the right itself is treated as an incorporeal hereditament and is real property. In Elliot v. Whitmore, 10 Utah 238, 37 P. 459, we held that an injunction requiring a defendant in possession to give plaintiff part of the water of a stream is in effect a judgment for the delivery of the possession of real property. We have further held that an action to determine the rights to the use of water, and the legal principles by which it is controlled, are the same as in an action to determine title to real estate.2 And a suit to quiet title to water rights is in the nature of an action to quiet title to real estate.3 The purpose of the statutory procedure, Ch. 4, Title 73, U.C.A.1953, for the determination of water rights is to prevent piecemeal litigation or a multiplicity of suits and to provide a means of determining all rights in one action.4 Once the determination has commenced the statute provides that notice shall be sent to all water claimants known to the State Engineer, that they shall be served with summons, that all other parties shall be served by publication of summons, that they all shall file water claims within a stated period, the claims themselves standing in the place of pleadings. The statute further provides: “Any person failing to make and deliver such statement of claim to the clerk of the court within the time prescribed by law shall be forever barred and estopped from subsequently asserting any rights, and shall be held to have forfeited all rights to the use of the water theretofore claimed by him”. U.C.A.1953, 73-4-9. In summary of the foregoing, it is evident that water rights are property rights and a general determination is in essence an action to quiet title to property rights. However it differs from the ordinary private suit in that it is a statutory procedure which may be commenced by the state engineer for the purpose of bringing into the suit every water claimant or user on a single source or system and require them to litigate and settle their relative rights in one proceeding. We are here concerned with the question whether the proceeding described above is a proceeding against the United [212] States. The Supreme Court has held that where a judgment sought would expend itself on the public treasury or domain it is a suit against the sovereign.5 If the objectors prevailed in their appeal the result would be that the government would lose its water rights which are vital to the permittees grazing in the Cache National Forest. It is self-evident that under the definition just quoted, as laid down by the Supreme Court, this case is a suit against the government. It is elemental that the Federal government cannot be sued without its consent and it has been held that there is no distinction between suits against the government directly and suits against its property.6 Nor can an officer of the government waive the exemption of the United States from judicial process or submit the United States or its property to the jurisdiction of the court.7 The waiver of sovereign immunity is the sole prerogative of Congress. No such waiver exists in this case. We cannot agree with the objector’s contention that this is not a suit against the government, because it voluntarily filed claims and submitted itself to the court’s jurisdiction. This is not a private suit which the government commenced by filing pleadings; it is a statutory procedure which was commenced by the state engineer wherein all water claimants were required to submit and defend their water claims. As we have previously noted, since this adjudication could adversely affect property rights claimed by the government, no federal officer had the authority to voluntarily submit these rights to the district court’s jurisdiction. The objectors place much weight on the case of the United States v. District Court, Utah, 238 P.2d 1132, wherein the United States made application with the state engineer to change the point of diversion for irrigation water. After a hearing the state engineer allowed the application but certain objectors appealed to the district court from the state engineer’s decision. The United States commenced an original proceeding against the district court for a writ to prevent it from exercising jurisdiction, claiming that the suit would be a suit against the government in violation of their sovereign immunity. This contention is the only point of similarity with the present case. In contrast we find that the government commenced the action in the former case whereas here the state engineer initiated the proceeding. Also, unlike the present action, there the government did not stand to lose valuable property rights. Most important, in deny [213] ing the writ the court pointed out that there was Congressional authority, in the form of a statute, which granted jurisdiction to state courts in such a proceeding. Such authority is missing in the present case. It therefore appears that the case of United States v. District Court does not support the objectors’ position. The objectors’ reliance on the telegram sent by the Attorney General to the United States Attorney for Utah saying: “You are authorized to appear in this matter to protect the interest of the United States in the use of waters claimed by it.”, is unwarranted. As we have noted previously no officer of the United States, not even the Attorney General has the authority to waive the government’s sovereign immunity. In the case of Stanley v. Schwalby, supra, an action was brought against certain officers of the United States to quiet title to a part oí a United States Military Reservation. The United States Attorney for that district appeared for the United States under authority from the Attorney General of the United States who instructed him, “ * * * to appear and defend the interests of the United States involved therein.” The Supreme Court of the United States held [162 U.S. 255, 16 S.Ct. 760]: “* * * Neither the * * * attorney general, nor any subordinate * * * has been authorized to waive the exemption of the United States from judicial process, or to submit the United States, or their property, to the jurisdiction of the court * * *. The answer actually filed by the district attorney, if treated as undertaking to make the United States a party defendant in the cause, and liable to have judgment rendered against them, was in excess of the instructions of the attorney general, and of any power vested by law in him or in the district attorney, and could not constitute a voluntary submission 'by the United States to the jurisdiction of the court.” Since no jurisdiction was acquired over the United States, no decree entered could adversely affect any water rights it claims. We do not have to pass on the merits either of its claims or of the claims of objectors. In passing we note that in 1952, Congress by statute, 43 U.S.C.A. § 666, has now consented to be joined as a party in the adjudication of rights to the use of water, allowing process to be served on the Attorney General. Cause remanded with directions to enter the judgment and decree in conformity with this opinion. Each party to bear his own costs. McDonough, c. j., and wade, j., concur. WOLFE, C. J., being disqualified, did not participate in the hearing of this cause. Footnotes [1] Chapter 4, Title 100, Revised Statutes of Utah, as amended, now 73-4-1 to .19 U. C.A.1953). [2] Logan, Hyde Park & Smithfield Canal Co. v. Logan City, 72 Utah 221, 269 P. 776. [3] Hammond v. Johnson, 94 Utah 20, 66 P. 2d 894. [4] Smith v. District Court, 69 Utah 493, 256 P. 539; Watson v. District Court, 109 Utah 20, 163 P.2d 322, 323. [5] In re State of New fork, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057; Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209. [6] Belknap v. Schild, 161 U.S. 10, 16 S.Ct. 443, 40 L.Ed. 599. [7] Carr v. United States, 98 U.S. 433, 25 L.Ed. 209; Stanley v. Schwalby, 162 U.S. 255, 16 S.Ct. 754, 40 L.Ed. 960.