156 F. 123 | U.S. Circuit Court for the District of Montana | 1907
The facts relevant and material to an understanding of the issues involved by the present controversy are, in brief, as follows: The Blackfeet Indian reservation, by its present boundaries, was established by a convention with the Indians, as shown by Act Cong. May 1, 1888, c. 213, 25 Stat. 113, 129. Birch creek forms its southern and southeasternmost boundary; the line of separation being in the center of the' stream. This creek has its source by several branches in the Rocky Mountains, and traverses public lands of the United States before it touches the reserve, and empties into the Marias river at the easternmost limit of the reserve. The Conrad Investment Company is a Montana corporation. In 1898 it began the construction of an extensive irrigation system for the reclamation and irrigation of lands in the county of Teton, in the state of Montana. The project contemplated the taking of water from Birch and Dupuyer creeks, to be carried away for storage and distribution as the demands might require. The company claims to have succeeded to an appropriation of 19,350 inches of water from Birch creek, initiated in 1897 by Thomas McGovern and his associates, and in right thereof, as well as by its own initiation, to have appropriated 20,000 inches of such water. At the time of the commencement of this suit it had constructed about 90 miles of the main channel and some 200 miles of laterals, together with a reservoir of dimensions of 5½ miles in length by a mile in width, with a depth of 35 feet, and storage capacity of 60,000 acre feet, adequate for the irrigation of 40,000 acres; the entire system being sufficient for the irrigation of 60,000 acres of land. The expense and outlay attending the enterprise was upwards of $100,-000. As a means of diversion from Birch creek, the company constructed a dam across the stream, tying it to the bank'upon the reservation side. The dam was first constructed of brush, bound together in bundles, laid in the stream extending with the current, and filled in with gravel and rock. Eater, however, it was reconstructed, of the same kind of material, with two tiers of piling driven across the-stream so as to hold the dam in place and render the structure more substantial and durable. This later improvement was completed about
Much testimony has been directed to the dam at the head of the investment company’s canal, for the purpose of indicating what amount of water was permitted to pass it and flow down the .creek for use by persons desiring to irrigate their lands below. Some of the witnesses affirm that there was a considerable seepage from the dam, amounting to from 100 to 250 inches of water; while others testify that a large amount of water was allowed to run over the dam and continue its course down the stream. I think it is proven, however, by a survey of all the testimony, that the dam as constructed was sufficient to turn practically all the water in the stream at its ordinary stage. In the flood season, which occurs annually and lasts from two to four weeks, the dam overflows by a large volume, and the overflow continues down the course of the creek; but otherwise the water was mainly diverted by the canal. Seepage from the dam amounted to but little, and whatever there was of it was taken up by ditches upon the south side of the stream, of which there are several, so that the people upon the reservation secured but small, if any, benefit from it. The investment company could, by the regulation of its headgates, so raise- the water in the stream as to allow it to flow over the dam in considerable quantities; but this was a regulation of which the company had complete control, and it assumed to divert the water or let it go down the stream as it pleased. By reason of its regulation, there was at times insufficient water running down the stream for use by the people upon the government side even for stock purposes, to say nothing of the irrigation that might have been carried on.
It is argued that there were some springs upon the government side that afforded abundant water for all stock and domestic purposes, and even for a limited irrigation. But in the last two years those springs, some, if not all of them, went dry, and the people were left without sufficient for their use. It is true that the last two years have been unusually dry, and there has been a dearth of water, as compared with former years. However, there has been at all times a large quantity of water flowing in Birch creek, abundant, if allowed to go down the stream, to have supplied all the wants and present needs of the people living upon the government side of the stream; but, as I have shown, it was cut off from them by the investment company’s dam. Birch creek, at its lowest stages, carries about 2,500 inches of water; at its highest, a-very large volume, amounting to 150,000 inches.
The primary question involved here, in my opinion, has been settled by the decision of the Circuit Court of Appeals for the Ninth Circuit, in the case of Winters v. United States, 143 Fed. 740, 74 C. C. A. 666. It was there determined, following the authority of the Supreme Court as announced in United States v. Rio Grande Irrigation Company, 174 U. S. 690, 702, 19 Sup. Ct. 770, 43 L. Ed. 1136, and Gutierres v. Albuquerque Land Co., 188 U. S. 545, 554, 23 Sup. Ct. 338, 47 L. Ed. 588, in effect that the United States, as owner of the lands — that is, such as
The next question in natural order needs elaboration. Local customs, regulations, and laws are paramount in determining the right to the diversion and use of water from public streams. Act Cong. July 2(5, 1866, c. 262, 14 Stat. 253 (section 2339, Rev. St. | U. S. Comp. St. 1901, p. 1437]), is in recognition of this, without intending to create any new, other, or different rights than such as existed at the time of its adoption. Atchison v. Peterson, 20 Wall. 507, 22 L. Ed. 414; Basey v. Gallagher, 20 Wall. 670, 22 L. Ed. 452; Broder v. Water Company, 101 U. S. 274, 25 L. Ed. 790. It is said: “The waters of flowing streams are publici juris — the gift of God to all his creatures.” Mohl v. Lamar Canal Co. (C. C.) 128 Fed. 776, 778. And again that, the government being the proprietor and owner of tie pitblic lands, “it has the power to sell or dispose of any estate therein or any part thereof. The water in an innavigable stream flowing over the public domain is a part thereof, and the national government can sell or grant the same, or the use thereof, separate from the rest of the estate, under such conditions as may seem to it proper.” Howell v. Johnson (C. C.) 89 Fed. 556, 558.
And so it has been held, referring to the statute of 1866, and the practical construction thereof has been, that as long as land belonged to the United States the water flowing over the same was subject to appropriation for any of the purposes named, when such appropriation was recognized by the local customs, laws, or decisions of the courts. Cruse v. McCauley (C. C.) 96 Fed. 369, 374. The lands here referred to as belonging to the United States, it is needless to add, are not such . as have been previously spoken of as government property. They are the public lands open for settlement, occupancy, or purchase in some form or right. Now, it is a most natural sequence that the waters of a stream cannot lose their public character unless they are disposed of or reserved in some right or need by the general government,' or the right to their use is acquired through local customs, laws, and regulations. The mere incident or circumstance therefore that a stream traversing the public lands of the country may border at some point, or for some space, a specific territory reserved by the government for some particular governmental use or purpose, would not of itself destroy the public character of its waters. They would be subject to appropriation the same as if the reserve had not been created,
It would seem that, by virtue of the acts of Congress relative to the public lands, and the streams and waters incident thereto, namely: Act July 26, 1866, c. 262, 14 Stat. 263, being section 2339, Rev. St. [U. S. Comp. St. 1901, p. 1437]; Act March 3, 1877, c. 107, 19 Stat. 377 [U. S. Comp. St. 1901, p. 1548] relative to the reclamation of desert lands; sections 18, 19, and 20 of the amendatory act thereto (Act March 3, 1891, c. 561, 26 Stat. 1101, 1102 [U. S. Comp. St. 1901, pp. 1570, 1571]) ; and Act June 17, 1902, c. 1093, 32 Stat. 388 [U. S. Comp. St. Supp. 1905, p. 349], as construed by the Supreme Court, particularly in the opinion .rendered in the case of Gutierres v. Albuquerque Band Co., supra — the defendant, the Conrad Investment Company, could rightfully divert water from streams coursing the public domain, and hence, in view of previous considerations herein, divert the surplus waters-of Birch creek, for actual use for irrigation and other purposes. If it was entitled to do this, then it was entitled to do that which was reasonably necessary to effectuate the diversion, by the construction of a dam or other means of turning the water from-its natural channel; and if, to this end, it was essential to extend the dam to the bank of the stream bordering the reservation, the right to do so would be but an incident of the right of diversion. So I conclude that, in itself, the construction by the defendant company of the dam to a conjunction with the reservation bank of Birch creek was not a trespass such as would entitle the government to an injunction restraining its maintenance.
I come then to inquire: What is the extent of the government’s reservation of the waters of Birch creek for its needs and uses in behalf of the Indians in the occupancy of the Blackfeet reservation ? And, subsidiary to this, is the further question as to the manner in which.
By a reference to the treaty with these Indians, it will be seen that the reservation was assigned to them for their exclusive use and occupancy, and that they might be assured of permanent homes. The avowed purpose of the government was to encourage the Indians in habits of industry, and to induce them to engage in pastoral pursuits and the cultivation of the soil, in order that they might not only become self-supporting, but that they should eventually take on the habits and busy themselves with the enterprises of the civilized races. And, further, through the long-established policy of the general government, it was designed that eventually those Indians would come into individual allotments of these reservation lauds, and occupy and own them in severalty, and that when the allotments were made the Indians should utilize them in the more approved manner of which they were susceptible. The. lands being arid, the need of water is manifest, and so it must be considered that it was likewise designed that the Indians should have and enjoy the use of water in available streams wherever their needs might require. The Indian problem was and is, however, in a state of development. How well the government will eventually succeed in inducing these Indians to adopt the habits of a pastoral and agricultural people is not yet apparent. It has ma.de progress with other tribes, and why may it not accomplish beneficial results in that line with these? We are informed by the present record that some of these Indians, and especially is this so of the half-bloods, are endeavoring to utilize the 'soil for grazing and agricultural purposes, and to that end are making use of the water available from streams for irrigation, that their products may be more abundant. And Major Dare, the agent in charge, tells us that about 90 per cent, of the Indians on the reservation have taken up separate settlements. This denotes progress in the way of the government’s policy, and gives promise that its full hopes may yet be realized. Manifestly, the Indians cannot he expected to acquire water rights to any considerable extent throtigh prior appropriation, because they are not far enough advanced in the art of agriculture to reduce the water to a continuous use, and the water of the public streams that they shall finally need depends largely upon their progress in this art. The government, however, being their guardian, has a most important trust to perform in this relation; that is, so to conserve the waters of such streams as traverse or border the reserve as to'supply the Indians fully in their probable, or, I may say, even possible future needs, when they have ultimately secured- their allotments in severalty. What these needs will be cannot be definitely determined. For the present, the matter is administrative in its detail. These Indians are now but the wards of the government. As it pertains to the lands which the government is holding in trust for them, it is administering them for their proper use and benefit, and in its administrative capacity it ought to be the judge of what amount of the waters of the streams adjacent to the x-eservation is or will eventually be essential for the needs of the Indians for use in connection with their lands.
The government has not to make a prior appropriation to enable it
It has been developed at the trial that from 8,000 to 10,000 acres of land upon the reserve is susceptible of irrigation from Birch creek. Of much of this the irrigation would be for grazing purposes, which would require less water than if employed for agriculture or the production of wild grasses for hay.' Mr. Robinson, an engineer and a witness for the government, estimates that one inch of water is sufficient for the proper irrigation of 2½ acres. This appears to be the government’s estimate ordinarily. Mr. Darling, an engineer also, and a witness for the defendant, estimates one-fourth of an inch to the acre, but concedes the government’s estimate to be at the rate as stated by Robinson. The government has sought to divert 800 inches. Persons of Indian blood or the husbands of Indian women residing within the reserve have made other large diversions, aggregating possibly 1,740 inches, but have seemingly not applied the half of it; the area susceptible of being covered thereby, so far as the evidence would indicate, amounting to from 500 to 600 acres, possibly more. The government alleges that its diversion by means of the ditch and those made by the settlers amount in the aggregate to 2,000 cubic feet per minute, and that the whole of this amount is essential and necessary for the proper irrigation and reclamation of lands available• and adjacent to said creek. There is a confusion arising from the bill putting its estimate upon the basis of cubic feet per minute, while the witnesses speak in inches. To bring the two together, I have made the following deduction : 2,000 cubic feet per minute is equivalent to 33½ second feet. Reducing this to inches, according to Mr. Newell’s estimate of the ratio of inches to the second foot, which is done by multiplying by 50, we have 1,666% inches. F. H. Newell’s article on Irrigation, vol. 8, The Americana.
Although the bill contains other general allegations — that in order to promote the civilization and improvement of the tribes of Indians upon said reservation and to encourage habits of industry among them, and to make all the lands within the said reservation which are adapted and suitable to farming and ranching and the pursuits of agriculture susceptible to cultivation, all the waters of Birch creek will be needed— the testimony adduced does not bear them out, and the question recurs whether the government is now entitled to the amount of water which it alleges has been diverted. I am of the opinion that it is so entitled. It would need more according to the estimate of Mr. Darling, at the rate of one-fourth of an inch of water to the acre. According to the experience of water users in Southern California, however, the above amount of 1,666% inches will be ample for the irrigation of 10,000 acres, if there should be that much contiguous to Birch creek on the reservation side. See Mr. Newell’s article above cited. Especially do I think this is so for the present needs, considering that
It is argued by counsel for defendant that water can be brought over from Badger creek, a stream located 13 or 14 miles north of Birch creek, for irrigation of all the Birch creek lands. This, however, is a project of doubtful utility; but conceding that it could be successfully carried out, the government is not required to do so, when the waters of the latter stream are much more available, and are as much subject to use upon the reservation as those of Badger creek. The suggestion is clearly one of expediency, of which the Interior Department ought to be the sole judge, as it is a matter for its initiative, acting in its administrative capacity, in determining the occasion and the needs of the government pertaining to the waters flowing in the stream along and upon the reservation.
It is urged that the government ought to be estopped by its conduct to question the right of the investment company to divert from Birch creek the amount of water that'it is claiming, the conduct ascribed consisting in the approval of the survey and plat of the canal traversing the public lands, as it does, and so laid as to take the larger volume of its water from Birch creek, by which it is claimed the government impliedly assented to the diversion; and that, the investment company having expended large sums of money in the construction of its canal, reservoir, and laterals, and many persons having settled in proximity thereto with a view to acquiring the use of water therefrom for irrigation and other purposes, the government ought not now to be heard to deny the rights which it encouraged the parties concerned to acquire at large expense.
Whatever right the investment company had to locate and construct its canal through the public lands and reservations of the United States was accorded by sections 18, 19, and 20 of the act of March 3, 1891, supra. Such a right is granted by these sections to any company formed for the purpose of irrigation, ahd duly organized under the laws of any state or territory, which shall have filed or may hereafter file with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization; and it is provided that: “All maps of location shall be subject to the approval of the department of the government having jurisdiction of such reservation.” This is but a regulation of statute, and the Secretary of the Interior acts in pursuance thereof. He has no power or authority to dispose of any of the waters of the public streams to private parties, nor can he bind the hands of the government by any acts of his looking to such a disposal. Hence his approval of maps of location as it relates to such a project bears with it the assent of the government that the project may go forward in the location and construction of canals, reservoirs, etc., over and across the public lands and reservations; but it can, by no rational canon of construction, carry with it a grant or the force of a permit to take any of the waters of the public streams. It is determined by other regulations altogether what waters may be
Another question presented is whether complainant can maintain this proceeding without at the same time making all other appropriated and users of water from the same stream parties to the suit, that the correlative rights of all the parties to the use of such water may be settled and adjusted. I am of the opinion that it can. Any invasion of the government’s right to the use of the water from said stream would give it cause for suit. And this would be so whether the shortage to the government was caused by one or several parties. All would be trespassers, and the government could sue some or all jointly, or any one of them severally, as it might feel disposed.
These considerations lead to a decree in favor of complainant. One will therefore be entered enjoining»the defendant company from diverting any of the waters of Birch creek so as to impinge upon the right of the government to have flowing at all times in the stream the amount of 1,666% inches; and the government will have leave to apply for a modification of this decree at any time that it may determine that its needs will be in excess of the amount of water so designated.