Actions in the Court of Claims to recover respectively the sums of $35,000 and $170,000, alleged values of certain properties charged to have been taken and appropriated by the United States.
Both appellants are corporations, and are respectively owners of lands in Churchill county, state of Nevada, surrounding and including lakes knows as Little Soda Lake and Big Soda Lake. The Horstmann Company is owner of the former and the Natron Soda Company is owner of the latter.
In 1906 each appellant was manufacturing soda from the waters of the respective lakes, and the controversy of the cases turns upon the condition of the lakes at that time, and their condition after an irrigation project was instituted by the government, called the Truckee Carson project.
The lakes are situated in an area known as the Carson Sink Valley, and in 1906 were the source of soda supply to the respective appellants.
From prior to 1867 to 1906 the levels of the lakes had not varied more than 2 feet. In 1906 the United States Reclamation Service action under the authority of acts of Congress constructed the Truckee Carson project consisting of dams, canals, and other structures whereby through the usual means large quantities of surface waters theretofore confined to the watershed of the Truckee river were in 1906 and during each year since then transported to the watershed of the Carson river and distributed to various and sundry tracts of land in the Carson River Valley for irrigation purposes.
Details of the project need not be given, but with its advent the body of the ground water in the entire section covered by the project rose, and the volume of water in the lakes has continually increased, and the level of the lakes has arisen about 19 vertical feet during the period of 1906 to 1916, in consequence of which the value of the properties of appellants has been destroyed, that of the Horstmann Company being $9,000, and that of the Natron Company being $45,000, according to the findings of the Court of Claims.
There have been additions to the canal project, and its ultimate development contemplates the reclamation of 206,000 acres of land. At present the canals of the project ramify an area of 100,000 acres.
No negligence on the part of the United States is alleged or proven.
The conclusion of the court was that appellants were not entitled to recover; hence it dismissed the actions and rendered judgments against appellants for costs of printing the records. Motions for new trials were made and denied.
The question of the jurisdiction of the Court of Claims of the action is intimated, if not urged, based on the allegation in the petition of the Horstmann Company that, owing to the porous condition of the soil in the canals and ditches and 'the lack of proper lining in said canals and ditches, and owing to the way said canals and ditches were built and also to the natural condition existing,' the water flowed into the lake and seeped and percolated through the canals and ditches.
The government is cautious in its characterization of this allegation and says that it 'apparently based the claim of the Horstmann Company upon a tort,' and adds, if the claim be so based, the Court of Claims had no jurisdiction, 'as the government has never waived its immunity from suit in such cases.'
We do not think, however, that the allegation was intended as an accusation of negligence, but rather to forestall a defense, based on the character of the works, that from them there could be no causal connection between the project of the government and the rise of waters in the lakes. The Court of Claims besides explicity found that there was no negligence.
Upon the merits, the contendion of the government is the absence of such causal connection between its works and the injury to the properties of appellants. It concedes, however, that the contention is a deduction from obscure findings; the court not finding affirmatively that a causal connection did not exist. 'Its decision was the Scotch verdict of 'not proved," to quote counsel. Appellants oppose the government's contention and deductions, oppose to them the difference in conditions before and after the execution of the canal project, and their reasoning seems to have the support of the methods that the world employs in the investigation of its phenomena and instances.