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ROXANNA CANAL Co., A CORPORATION, et al. v. DANIELS, et al.
    Equity 2447 (United States District Court for the District of Wyo., Feb. 4, 1941).

Teton and South Leigh Creeks, 1941

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT OF WYOMING
IN EQUITY NO. 2447

SECOND STIPULATION AND DECREE

It is hereby stipulated and agreed by and between the above named plaintiffs and defendants in the above entitled suit that the following shall be the basis of a decree to be entered in the above entitled cause, and the Court is hereby authorized to enter a decree fixing the rights of the several parties, plaintiff and defendant, in accordance with the terms of this stipulation.

That for the purpose of effecting a compromise and agreement, and to terminate the pending litigation, and to definitely establish the rights of the parties litigant, it is hereby agreed that the appropriators and water users in the State of Wyoming, who divert and use the waters of Teton Creek shall be permitted to use as much water from said stream as they can apply to a beneficial use until the total stream flow of said Teton Creek and its tributaries in the State of Wyoming shall recede to one hundred seventy (170) cubic feet per second of time; that in the determination of said stream flow all diversions in Wyoming, including the Grand Teton Canal, shall be and constitute a part of the said stream flow in determining the total of the said stream flow; that when the said stream flow of the said Teton Creek, and its tributaries in Wyoming, shall recede to said one hundred seventy (170) cubic feet per second of time, the Wyoming users; who divert water above the diversion of the Grant Teton Canal, shall thereafter be limited and permitted to divert one cubic foot per second of time for each fifty (50) acres of land (being one miner's inch per acre) for Wyoming lands of the said users in the State of Wyoming, and to continue to be so regulated until the flow of the said Teton Creek, and its tributaries in Wyoming, including all the Wyoming diversions, diminishes to ninety (90) cubic feet per second of time, after which time the stream flow of the said Teton Creek, and its tributaries, is to be divided between the Wyoming and Idaho areas for the benefit of their appropriators, on a fifty-fifty basis, that is, ---that Wyoming shall be entitled to divert one-half of said stream flow and one-half of said stream flow shall be permitted to flow down said stream for Idaho. It being understood and agreed that all ditches diverting in Wyoming, and now having legal appropriations of water in Wyoming and/or Idaho, to be supplied from the one-half of said stream flow awarded to Wyoming, excepting therefrom the Grand Teton Canal which, for the sake of this agreement, although having its diversion works in the State of Wyoming, is to be considered as an Idaho appropriation, and if entitled under the laws of the State of Idaho to any of the stream flow of Teton Creek, shall be supplied from any portion or percentage herein agreed as to the portion or percentage to which Idaho shall be entitled for the benefit of its appropriators.

It is agreed by the Wyoming users that what is known as the Southside Canal, which canal supplies water to both states, Wyoming and Idaho, appropriators along the boundary line of the states, and which has been granted Wyoming permit No. 7420 for the diversion of water from Teton Creek, in Wyoming, is to be considered as a Wyoming diversion and the users in both Wyoming and Idaho supplied with water from it to be furnished and supplied from the part or portion of the stream flow of said Teton Creek awarded Wyoming.

It is agreed that the waters of South Leigh Creek shall be distributed as follows,--- the Wyoming appropriators may divert as much of the stream flow of South Leigh Creek as they can apply to a beneficial use upon their lands until the natural flow of said stream, at the Idaho-Wyoming boundary line, including all diversions from said stream above said boundary line, diminishes to a total of sixteen (16) cubic feet per second of time, at which time the Wyoming users shall be permitted and may divert one-half of the stream flow of said South Leigh Creek, the balance to flow down said stream for Idaho users.

The determination of the amount of the stream flow of the said streams, and the diversion of the waters thereof, as between the states, as herein agreed, shall be under the supervision and direction of the Commissioner of Reclamation of the State of Idaho, and the State Engineer of the State of Wyoming.

The distribution of water among the users of Wyoming of the part or portion of the waters of said streams which they shall be entitled to shall be under the direction and supervision of the State Engineer of Wyoming, or other proper Wyoming officer; the distribution among and to Idaho users of the part or portion herein to which they may be entitled of said stream flow shall be under the direction and supervision of the Commissioner of Reclamation of Idaho, or other proper Idaho officer.

It is hereby agreed that all diversions within the State of Wyoming shall install diversion works and measuring devices, approved by the Statp Engineer of Wyoming, on all ditches and canals to make possible accurate measurements and proper administration and distribution of the waters of said creeks.

Dated this 20th day of March, 1940.

(Names and signatures of plaintiffs and defendants in Equity No. 2447 listed in original copy at this point, omitted.)

Now, therefore, the said first stipulation filed January 10, 1938 is hereby adopted as proof of the rights of the said parties plaintiff and defendant, and the second stipulation filed July 6, 1940, is approved, confirmed and adopted as a part of this decree; and the Court being fully informed and advised in the premises,---

It is ordered, adjudged, and decreed that,---

The waters of Teton Creek, a tributary of Teton River, Idaho, an interstate stream, shall be distributed to the appropriators and water users in the State of Wyoming and they shall be permitted to use all the waters from said Teton Creek as they can apply to beneficial use, until the total stream flow of said Teton Creek and its tributaries in the State of Wyoming shall recede to one hundred seventy (170) cubic feet per second of time; that in the determination of said stream flow all diversions in Wyoming, including the Grand Teton Canal, shall be and constitute a part of the said stream flow in determining the total of the said stream flow; that when the said stream flow of the said Teton Creek, and its tributaries in Wyoming shall recede to one hundred seventy (170) cubic feet per second of time, the Wyoming users, who divert water above the diversion of the Grand Teton Canal, shall thereafter be limited and permitted to divert one cubic foot per second of time for each fifty (50) acres of land (being one miner's inch per acre) for Wyoming lands of the said users in the State of Wyoming, and to continue to be so regulated until the flow of the said Teton Creek, and its tributaries in Wyoming, including all the Wyoming diversions, diminishes to ninety (90) cubic feet per second of time, after which time the stream flow of the said Teton Creek, and its tributaries, is to be divided between the Wyoming and Idaho areas for the benefit of their appropriators, on a fifty-fifty basis, that is, ---that Wyoming shall be entitled to divert one-half of said stream flow and one-half of said stream flow shall be permitted to flow down said stream for Idaho. It being understood and agreed that all ditches diverting in Wyoming, and now having legal appropriations of water in Wyoming and/or Idaho, to be supplied from the one-half of said stream flow awarded to Wyoming, excepting therefrom the Grand Teton Canal, which for the sake of this decree, although having its diversion works in the State of Wyoming, is to be considered as an Idaho appropriation, and if entitled under the laws of the State of Idaho to any of the stream flow of Teton Creek, shall be supplied from any portion or percentage herein agreed as the portion or percentage to which Idaho shall be entitled for the benefit of its appropriators.

It is further decreed that what is known as the Southside Canal, which canal supplies water to both Wyoming and Idaho appropriators along the boundary line of the States, and which has been granted Wyoming permit No. 7420* for the diversion of water from Teton Creek, in Wyoming, is to be considered as a Wyoming diversion and the users in both Wyoming and Idaho supplied with water from it are to be furnished and supplied from the part or portion of the stream flow of said Teton Creek awarded Wyoming.

It is ordered, adjudged, and decreed that the waters of South Leigh Creek shall be distributed as follows,---the Wyoming appropriators may divert as much of the stream flow of South Leigh Creek as they can apply to a beneficial use upon their lands until the natural flow of said stream, at the Idaho, Wyoming boundary line, including all diversions from said stream above said boundary line, diminishes to a total of sixteen (16) cubic feet per second of time, at which time the Wyoming users shall be permitted and may divert one-half of the stream flow of said South Leigh Creek, the balance to flow down said stream for Idaho users.

The determination of the amount of the stream flow of the said streams, and the division of the waters thereof, as between the states, as herein decreed, shall be under the supervision and direction of the Commissioner of Reclamation of the State of Idaho, and the State Engineer of the State of Wyoming.

The distribution of water among the users of Wyoming of the part or portion of the waters of said streams which they shall be entitled to shall be under the direction and supervision of the State Engineer of Wyoming, or other proper Wyoming officer; the distribution among and to Idaho users of the part or portion herein to which they may be entitled of said stream flow shall be under the direction and supervision of the Commissioner of Reclamation of Idaho, or other proper Idaho officer.

It is decreed that all diversions within the State of Wyoming shall install diversion works and measuring devices, approved by the State Engineer of Wyoming, on all ditches and canals to make possible accurate measurements and proper administration and distribution of the waters of said creeks.

That in carrying out this decree and the distribution of the waters of said streams, the part or portion of said stream flow to which the water users and appropriators in the State of Wyoming shall be entitled shall be distributed in accordance with the rights of priority, as fixed and determined by the Board of Control, or Court of the State of Wyoming.

That the distribution of the water of said creeks to which the appropriators and water users of the State of Idaho shall be entitled under this decree shall be distributed to the Idaho users by the proper officer of the State of Idaho according to the rights and priorities as fixed by the Courts of the State of Idaho.

That the rights fixed and decreed to the parties who have joined in the foregoing stipulations, or their predecessors in interests, either by the Board of Control of the State of Wyoming or the Courts of Wyoming, and by the Courts of the State of Idaho are hereby recognized and decreed as binding upon all of the parties who have signed the foregoing stipulation as the same affects the quantity of stream flow and dates of priorities of said creeks as awarded to the Wyoming appropriators and users and the Idaho appropriators and users.

The Court retains jurisdiction of this cause for a period of one year for the purpose of making any correction to the decree or the determining of the rights of any parties who may have an interest in the waters of said streams who are not now parties to this action and desire to become parties hereto.

Each party shall,pay his own costs.

Done in open court this 4th day of February, 1941.

(Signed) T. BLAKE KENNEDY
Judge

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*Permit No. 7520 erroneously used in original Decree.


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