205 F. 416 | D. Idaho | 1913
This is an action at law, brought by the plaintiff to recover from the defendant $2,461.30, the alleged value of 246.13 acres of land on the Ft. Hall Indian reservation in southern Idaho. The facts exhibited by the complaint are, in substance, that the defendant is a corporation engaged in constructing an irrigating system for the irrigation of lands adjacent to the reservation, a public use, and that, being in need of a reservoir site, on June 27, 1908, it made application to the Secretary of the Interior for the privilege of occupying the lands in question for such purpose. In due time the application was approved, and thereupon it constructed its reservoir.
It is not altogether clear from the plaintiff’s brief whether it contends that by the act of March .3, 1891, no such authority ever was conferred upon the Secretary of the Interior, or only that in so far as that act purports to confer the authority it has been repealed. That the authority was originally conferred I have no doubt. When the act was passed it must have been contemplated that its application would be largely, if not entirely, confined to the Western states, and the "reservations” most prominently in mind must have been Indian reservations, for they were at the same lime numerous and the most extensive reservations in the West. That ail Indian reservation is a “reservation oí the United States” admits of little doubt. L. L. & G. R. Co. v. U. S., 92 U. S. 733, 23 L. Ed. 634; M., K. & T. R. Co. v. Roberts, 152 U. S. 114, 14 Sup. Ct. 496, 38 L. Ed. 377; In re Rio Verde Canal Co., 27 Rand Dec. Dep. Int. 421. In this last case Mr. Secretary Bliss advisedly held the statute to be applicable to Indian reservations, and very persuasively states the reasons for such conclusion. It is pointed out that there is no apparent reason why an Indian reservation should not be subject to the grant of a right of way the same as any other reservation, especially in view of the fact that the Executive Department having jurisdiction thereof may determine whether a right of way can he granted without injury to the general purpose of the reservation, and extend or withhold approval accordingly.
The principal contention .seems to be that, this provision of the act of March 3, 1891. was by necessary implication repealed by the act oí May 11, 1898 (30 Slat. 404, c. 292 (U. S. Comp. St. 1901, p. 1572]), amending an act approved January 21, 1895, entitled “An act to permit the use of a right of way through the public lands for tramroads, canals, and reservoirs, and for other purposes” (Act Jan. 21, 1895, 28 Stat. 6)35, c. 37 [U. S. Comp. St. 1901, p. 1572]), which in turn seems to he an amplification of section 2339 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 1437), granting rights of way for the construction of ditches and canals used in carrying on mining operations. The section is embraced in chapter 6, entitled "Mineral Ratids and Mining Resources.” The act of January 21, 1895, provides:
the Secretary of the Interior be. and he hereby is, authorized and empowered under general regulations to be fixed by him to permit the use of the right of way through public lands of the United States, not within the limits of any park, forest, military or Indian reservation, for tramroads, canals, or reservoirs, to the extent of the ground occupied by the water of*420 the canals and reservoirs, 'and fifty feet on each side of the marginal limits thereof, or fifty feet on each side of the center line of the tramroad, by any citizen -or any association of citizens of .the United States engaged in the business of mining or quarrying, or of cutting timber and manufacturing timber.”
It will thus be seen that the scope of this grant is entirely distinct from that of the grant of March 3, 1891, which pertains exclusively to the subject of irrigation, while this act has to do only with mining and quarrying, and with the lumbering industry. The act .of May 11, 1898, amends the act of 1895 by adding thereto two paragraphs, the first of which simply provides that, in addition to mining, quarrying, and lumbering, the tramways, canals, or reservoirs for which rights of way may be appropriated may be used for “the purpose of furnishing water for domestic, public, and other beneficial uses.” It is doubtless true that this language is broad enough to include the use to which water was to be applied under the act of March 3, 1891; but it is clear beyond peradventure that it was not intended thereby to repeal the earlier act, because in the succeeding paragraph it is declared:
“That the rights of way for ditches, canals or reservoirs heretofore or hereafter approved under the provisions of sections 18, 19, 20, and 21” of the act of March 8, 1891,"“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.”
Here is an express recognition of the fact, not only that rights of way for .ditches and canals had theretofore been approved under the earlier act, but that they might thereafter be approved, and surely there could be no subsequent approval if at the time it was intended that the act conferring the authority to approve should then and there stand repealed. Instead of an intention to repeal the act of March 3, 1891, it was clearly the purpose of Congress to leave it intact, and to supplement and enlarge its scope by providing that the canals constructed in accordance with its provisions might be used not only for furnishing water for irrigation purposes, but also for other purposes of a public nature, such as transportation and power, so long as such purposes were subsidiary to the main purpose of irrigation.
The argument that the granting of such rights of way upon reservation lands operates as an injustice to the Indians is based upon an assumption of conditions which do not necessarily exist. The construction of an irrigation system in part upon reservation lands may or may not diminish the value of the reservation as a whole. Conditions may be readily imagined where the value would be enhanced rather than diminished. Presumably, and such was. doubtless the view of Congress, the Executive Department will not give its approval to an appropriation substantially prejudicial to the interests of the Indians, and here we are not advised of the conditions or terms upon which the Secretary indorsed' his approval.
Accordingly the demurrer will be sustained, and the complaint dismissed.