Kern River Co. v. United States
257 U.S. 147 (1921)

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U.S. Supreme Court

Kern River Co. v. United States, 257 U.S. 147 (1921)

Kern River Co. v. United States

No. 50

Argued October 20, 21, 1921

Decided November 21, 1921

257 U.S. 147

Syllabus

1. A right of way through public lands or reservations, obtained through an approval by the Secretary of the Interior of an application under the Act of March 3, 1891, c. 561, §§ 18-21, 26 Stat. 1095, is neither an easement nor a fee simple absolute, but a limited fee on implied condition of reverter in the event the grantee ceases to use or retain the land for the purpose named in the act -- irrigation. P. 257 U. S. 151.

2. The Act of May 14, 1896, c. 179, 29 Stat. 120, which made special provision for rights of way through public lands and forest reservations for the purpose of developing electric power, allowing a revocable permit or license and not a limited fee, was superseded by the Act of February 15, 1901, c. 372, 31 Stat. 790, which deals with the subject along similar lines. P. 257 U. S. 152. Utah Power & Light Co. v. United States,243 U. S. 389.

Page 257 U. S. 148

3. The Act of May 11, 1898, C. 292, 30 Stat. 404, provided that rights of way approved under the Act of March 3, 1891, supra,

"may be used for purposes of a public nature, and said rights of way may be used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation."

Held, construing it in the light of legislative history and administrative construction, that the use "for purposes of a public nature" must be "subsidiary to the main purpose of irrigation." P. 257 U. S. 152.

4. Whether the use of such a right of way for the generation of electric power which is transmitted to other places and there commercially supplied for use in operating electric railways, lighting municipalities, and operating pumps on farms and ranches is to be classed as a use for "purposes of a public nature" or as a "development of power" within the meaning of the Act of May 11, 1898, supra, in either event, it is a use which that act permits only where it is subsidiary to irrigation, and cannot take the place of the latter as the main purpose to which the right of way must be devoted. P. 257 U. S. 154.

5. Where such a right of way has never been used for irrigation, and the grantees are effectually and permanently precluded from so using it by agreement and by a consent decree, the condition of the grant is not only broken, but rendered impossible of performance, and the United States is entitled to a forfeiture. P. 257 U. S. 154.

6. For the assertion and enforcement of the forfeiture of the grant, an act of Congress declaring it or directing suit is not necessary; these objects may be accomplished through a suit brought by the Attorney General, under his general authority, where no act of Congress forbids. P. 257 U. S. 154.

7. Where the right to a forfeiture is clear, and asserted in the public interest, a court of equity will not withhold appropriate relief. P. 257 U. S. 155.

8. A suit to enforce a forfeiture of a right of way granted through an approval by the Secretary, for a breach of a condition subsequent, is not subject to the six-year limitation imposed by the Act of March 3, 1891, C. 559, 26 Stat. 1093, on "suits to vacate and annul patents." P. 257 U. S. 155.

264 F. 412 modified and affirmed.

Appeal from a decree of the circuit court of appeals reversing a decree of the district court and directing that court to enter another cancelling an approval of an

Page 257 U. S. 149

application for a right of way for canal purposes, which approval had been granted by the Secretary of the Interior under the Acts of March 3, 1891, c. 561, 26 Stat. 1095, and May 11, 1898, c. 292, 30 Stat. 404, and enjoining the present appellants from further maintenance of their canal unless, within a reasonable time, they applied for and obtained a lawful permit or license therefor.

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