14 F. Supp. 10 | D. Nev. | 1936
The government objects to the holding of this court (11 F.Supp. 158) and the proposed finding that, in setting aside the Walker River Indian Reservation, no express reservation of water for purposes of irrigation was made in the executive order of 1859. The government contends (citing Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340; McFadden v. Mountain View Min. & Mill. Co. (C. C.A.) 97 F. 670; Gibson v. Anderson (C. C.A.) 131 F. 39; Opinions of Attorney General, Vol. 34, page 171) that there was an implied reservation of water.
Even if a reservation of water may be implied in the executive order, however the Indian rights may be defined or labeled in this instance, this court is of the opinion that the facts and circumstances have placed the white settlers in an inexpugnable position. Briefly, the facts, as disclosed by the evidence and narrated in this court’s opinion in 11 F.Supp. 158, show that, after the establishment of the reservation in 1859 (then and thereafter the Indians being at war with the whites), commencing in 1860 the whites acquired title from the United States to lands above the Indian Reservation, bordering on and adjacent to the Walker river and its tributaries; that they also acquired water by prior appropriation for a beneficial use, and actually irrigated and reclaimed such lands; that they have enjoyed undisputed and undisturbed possession of such lands and such water rights for more than 50 years; that to dispossess them now would bring ruin to long-estabHshed settlers, and return to waste the lands which they, by their industry and with the acquiescence of the government, reclaimed from the desert.
Under such facts and circumstances this court is not moved to give a decree destroying the rights of the white pioneers.
