213 F. 601 | 9th Cir. | 1914
Section 18 of the Act of March 3, 1891, c. 561, 26 Stat. 1101 (U. S. Comp. St. 1901, p. 1570), provides;
“That tbe right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and 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 under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and Its laterals, and fifty feet on each side of the marginal limits thereof. * * * Provided, that no such right of way shall be so located as to interfere with the proper occupation by the government of any such reservation, and all maps of location shall be subject to the approval of the department of the government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective states or territories.”
The plaintiff contends that in the words used in section 18, “right of way through the public lands and reservations of the United States
*For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
We think that the grant of rights of way through the “public lands and reservations of the United States,” in the Act of March 3, 1891, was intended to include Indian reservations. At the date of that act the Indian reservations were the only considerable reservations of the United States. Military reservations were comparatively small and compact, and were not contiguous to arid lands which might be reclaimed by irrigation. The forest reserve policy of the government had not then been inaugurated. That the United States had the power to grant rights of way over Indian reservations, notwithstanding its treaty obligations with the Indians, had already been firmly established. Buttz v. Northern Pacific Railroad, 119 U. S. 55, 7 Sup. Ct. 100, 30 L. Ed. 330. It was reaffirmed in Missouri, Kansas & Texas Ry. Co. v. Roberts, 152 U. S. 114, 14 Sup. Ct. 496, 38 L. Ed. 377. In the case last cited, although a treaty had been made between the United States and the Osage Indians, reserving to the latter the lands through which the railroad company was granted its right of way, the court said:
“The United States had the right to authorize the construction of the road of the Missouri, Kansas & Texas Railway Company through the reservation of the Osage Indians, and to grant absolutely the fee of the 200 feet as a right of way to the company. Though the lands of the Indians were reserved by treaty for their occupation, the fee was always under the control of the government.”
That an Indian reservation is included in the term “reservations of the United States” is indicated by the decision in that case, as well as by Leavenworth, etc., R. Co. v. United States, 92 U. S. 733, 747 (23 L. Ed. 634) in which the court said:
“Every tract set apart for special uses is reserved to the government, to enable it to enforce them. There is no difference, in this respect, whether it be appropriated for Indian or for other purposes.”
And referring to the lands reserved by treaty to the Osage Indians, the court observed:
. “The. treaty reserved them as much to one as to the other of the contracting parties. Both were interested therein and had title thereto. In one sense they were reserved to the Indians; but, in another and broader sense, to the United States for the use of the Indians.'1
In the case of Rio Verde Canal Co., 27 Land Dec. Dept. Int. 421, Mr. Secretary Bliss in his opinion said:
“The provisions of section 18, Act of Congress of March 3, 1891, granting the right of way through the public lands and reservations of the United States for irrigation purposes, include Indian reservations, subject to the con*604 dition that the location and construction of the ditch or canal shall not interfere with the proper occupation of such reservations by the government for Indian purposes and uses. * * * There is no reason apparent why such reservation should not be subject to the grant of the right of way as any other reservation, and the executive department having jurisdiction of such reservation will determine whether it can be so located, and will withhold or give its approval accordingly.”
The intention of Congress is further indicated by the language of the Act of February 15, 1901, 31 Stat. 790, authorizing the Secretary of the Interior to permit the use of rights of way through the “public lands, forest and other reservations of the United States,” for electrical plants, canal ditches, and reservoirs used to promote irrigation, with the proviso that such permit shall be allowed within or through any of said parks or any forest or military, Indian, or other reservation only upon the approval of the officers of the department under whose supervision such park or reservation falls. It is true that the licenses authorized to be granted under that act gave no permanent rights, but were made revocable by the Secretary of the Interior; but that fact does not render the act the less instructive as indicating the attitude of Congress toward the question of the grant of rights of way over Indian reservations.
“That tbe rights of way for ditches, canals, or reservoirs heretofore or hereafter approved under the provisions of sections eighteen, nineteen, twenty, and twenty-one of the act entitled '“An act to repeal timber culture laws, and for other purposes,’ approved March third, eighteen hundred and ninety-one, 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.”
While it might be said that the language of the first section of the act of 1898 is sufficiently broad to include rights of way for the use
The judgment is affirmed.