Conrad Inv. Co. v. United States
| Decision Date | 25 May 1908 |
| Docket Number | 1,530. |
| Citation | 161 F. 829 |
| Parties | CONRAD INV. CO. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Walsh & Nolan and George H. Stanton (T. J. Walsh, of counsel), for appellant.
Carl Rasch, U.S. Atty.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
This is an appeal from a decree entered in the United States Circuit Court for the District of Montana enjoining the defendant from obstructing the flow of a stream of water to the extent of interfering with the rights of the Indians on the Blackfeet Indian reservation. The controversy relates to the right to the flow of water in Birch creek, an unnavigable stream whose middle line forms the southern and southeastern boundary of a tract of land in the county of Teton, in the state and district of Montana, reserved by the United States government for the permanent home and abiding place of certain tribes of Indians, under the name of the Blackfeet Indian reservation.
It is alleged by the complainant, and admitted by defendant, that large portions of the lands embraced within said reservation are well adapted for stock raising, and other large portions are susceptible of cultivation; that large herds of cattle and large numbers of horses, the property of the government and of the Indians, have been and are now 'pasturing and grazing upon said reservation and upon the lands within said reservation, being and situate along and bordering upon said Birch creek'; that in order to make the lands productive beyond the growth of natural grass irrigation is necessary that the defendant, a Montana corporation, in the year 1900 constructed a dam in the channel of said Birch creek for the purpose of diverting certain waters of said creek into a canal constructed by defendant, and through said canal into ditches and reservoirs connected therewith; that defendant has used and still continues to use said canal, ditches, and reservoirs for such purpose. It appears that defendant's dam was reconstructed in 1904; that since such reconstruction-- excepting in times of extreme high water extending over not more than two or three weeks of the entire year-- the dam is capable of turning all the waters of Birch creek, beyond a small amount of seepage, into defendant's canal; and that the creek below defendant's dam was practically dry at certain points during at least a portion of each of the summers of 1904 and 1905, which seems to have been a condition before unknown.
In Winters v. United States, 143 F. 740, 74 C.C.A. 666, and 148 F. 684, 78 C.C.A. 546, the controversy involved the right of the United States and of the Indians residing upon the Belknap Indian reservation to the use of 5,000 inches of the waters of Milk river for useful and beneficial purposes. The Indian reservation was established by the treaty between the United States and the Indians, under Act Cong. May 1, 1888 c. 213, 25 Stat. 113-133. The center of Milk river is the northern boundary line of the reservation throughout its entire width, and is the principal source of supply of water for the various uses of the government and the Indians for irrigation purposes generally upon the reservation. The water is diverted from the river and distributed over the lands of the reservation by means of a canal and lateral ditches .
The defendants in that case were settlers upon the public lands of the United States in the vicinity of Milk river, who had constructed a dam across the channel of Milk river above the reservation, and had appropriated and diverted the waters of Milk river at that point for the purpose of irrigating their lands, which they claimed the right to do under the desert land laws of the United States and the laws of the state of Montana authorizing the appropriation of the waters of the streams of that state for household, domestic, agricultural, irrigating, and other purposes. The action was brought by the United States to perpetually restrain the defendants from in any manner taking or diverting the waters of Milk river, and from in any manner impeding, obstructing, or preventing the waters of Milk rive and its tributaries, to the amount of 5,000 inches, from flowing down the channel of the river to the point of diversion upon the reservation. A decree was entered in the Circuit Court for the District of Montana in favor of the complainant, and the defendants appealed. This court affirmed the decree, holding that the United States, by treaties with the Indians on the reservation, had impliedly reserved the waters of Milk river for the benefit of the Indians on the reservation to the extent reasonably necessary to enable them to irrigate their lands, and that grantees and settlers on public lands outside of the reservation could not acquire, under the desert land laws of the United States or the laws of the state of Montana relating to the appropriation of the waters of the streams of that state, the right to divert the waters of Milk river to the prejudice of the rights of the Indians residing upon that reservation. This decision has been affirmed by the Supreme Court of the United States in Winters v. United States, 207 U.S. 564, 28 Sup.Ct. 207, 52 L.Ed. . . . . In the course of the decision, on page 577 of 207 U.S., page 212 of 28 S.Ct. (52 L.Ed. . . .), the court said:
The present case is in many respects similar to the Winters Case. The act of Congress of May 1, 1888, which ratified an agreement with certain Indians and established the Ft Belknap Indian reservation, with the middle of the main channel of Milk river for its northern boundary, established also the Blackfeet Indian reservation, with the middle of the channel of Birch creek for its southern and southeastern boundary, and in this case the diversion of the waters of Birch creek by means of a dam is the subject of controversy, as the diversion of the waters of Milk river by means of a dam was the subject of controversy in the Winters Case. The law of that case is applicable to the present case, and determines the paramount right of the Indians of the Blackfeet Indian reservation to the use of the waters of Birch creek to the extent reasonably necessary for the purposes of irrigation and stock raising, and domestic and other useful purposes. ...
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