United States v. 5.61 Acres of Land, more or less, situate in the County of El Dorado

In this action, a proceeding in eminent domain by plaintiff to condemn a right of way for a road on the property of defendant, Rhyolite, Inc., plaintiff has submitted a request for a pretrial order. This matter was presented orally, each party has tendered memoranda in support of his respective position, and the matter is now ready for decision and determination. The sole issue presented by the parties in their memoranda is-whether plaintiff may have a “secondary” easement in the roads sought to be condemned incident to its already existing easements for canals and ditches on defendant’s property. Before reaching a conclusion on this question, certain preliminary observations appear appropriate.

By the Act of August 30, 1890, 26 Stat. 391 , 43 U.S.C.A. § 945 , Congress expressly reserved in the United States, from all land patents thereafter issued, a right of way on the land granted for ditches and canals “constructed by the authority of the United -States.” The statute was made applicable to lands west of the one-hundredth meridian. Both parties concede that it is applicable to the land of the defendant herein. In the exercise of this right, plaintiff has constructed what is…