In re Huntley

• Decision Date: 07 February 1898
• Docket Number: 401.
• Parties: In re HUNTLEY.
• Court: U.S. Court of Appeals — Ninth Circuit

85 F. 889

In re HUNTLEY.

No. 401.

United States Court of Appeals, Ninth Circuit.

February 7, 1898

E. N Harwood, for petitioner.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

This is an application by Abraham L. Huntley to this court, in the exercise of its original jurisdiction, for a writ of habeas corpus to relieve him from the custody and alleged unlawful imprisonment in which he is held by William McDermott, United States marshal for the state of Montana, by virtue of an order of the United States circuit court for the district of Montana. Annexed to and made a part of the petition for the writ are duly-certified copies (1) of the bill of complaint findings, and decree, which form the basis of the contempt proceedings under which the prisoner was imprisoned; (2) of the affidavit charging the petitioner with a violation of the provisions of that decree; (3) of the proceedings on that affidavit, culminating in the judgment adjudging the petitioner guilty of a contempt of court in violating the provisions of its decree; and (4) of the commitment based on that judgment, under which the petitioner is held. In addition to the petition for a writ of habeas corpus, the petitioner also asks for a writ of certiorari, if, in the opinion of the court, such writ should be necessary, in order to bring up those records. But, as certified copies of them are annexed to the petition, we think they may be considered by the court, as was done in Re Chapman, 166 U.S 661, 17 Sup.Ct. 677, and in Re Burrus, 136 U.S. 586 10 Sup.Ct. 850.

The complaint in the suit which formed the basis of the proceedings against the petitioner was a bill filed in the United States circuit court for the district of Montana by Thomas H. Howell against Joseph H. Graham, Tillman C. Graham, Allen Graham, Allen P. Graham, Michael Wrote, John Bowlar, Fred C. Cook, George Miller, Clarence Kirk, Abraham L. Huntley, John Widman, George B. Teetles, John Miner, Baxter Zachary, and James Pauley, in which the complainant alleged his citizenship of the state of Wyoming, and the citizenship of the defendants to the suit to be in the state of Montana; that for the period of four years then last past the complainant had had and enjoyed the possessory right to certain described tracts of agricultural and arid lands of the government in the county of Fremont, state of Wyoming, aggregating 160 acres, which lands required artificial irrigation to produce any kind of crop, and that since August 1, 1890, the complainant had had the use of, and the right to use, all the waters of a certain creek, called 'Sage Creek,' for the purpose of irrigating the said lands; that the complainant appropriated all of the said waters for the purposes stated, in accordance with the laws of the state of Wyoming, as also those of the state of Montana, and had continuously used and appropriated the same to those purposes; that such appropriation was made by the complainant on the 1st day of August, 1890, by constructing a dam and a ditch tapping the stream at a point on the S.W. 1/4 of the S.W. 1/4 of section 18, township 57 N., of range 97 E., in the county of Fremont, state of Wyoming, which ditch was at all times provided with a lawful head gate for the regulation and measurement of the flow of the water through the ditch, and that the ditch and head gate were at all times capable of carrying, and did carry, when there was sufficient water flowing in the stream, 500 inches, statutory measurement, of the waters of Sage creek; that from the time of the appropriation the complainant used the said waters under a claim of right, and adversely to the defendants and to each of them, without let or hindrance from them or any person, until within a year then last past, during which year the defendants settled upon Sage creek and its tributaries, in the state of Montana, and constructed dams, dikes, and ditches, and other obstructions, in the creek and its tributaries, by means of which they diverted large quantities of the waters from the stream and its tributaries to and upon lands claimed and occupied by them, respectively, in the state of Montana, thereby wholly depriving the complainant of the use and enjoyment of such waters, so that during a portion of the summer then last past the complainant was not able to get a sufficient supply of water for irrigating his crops planted and growing on his lands in the state of Wyoming, and that late in the summer season then last past the defendants took all of the water of the stream and its tributaries, thus depriving the complainant of the whole of the amount of the waters of Sage creek appropriated by him prior to the appropriation or use of the same by the defendants, or either of them, to the damage of the complainant; that the defendants threatened to continue to so divert and use the waters of Sage creek and its tributaries, in the state of Montana, notwithstanding the rights of the complainant, and in defiance of those rights, by reason of which the complainant prayed an injunction against the defendants' interference therewith. The decree of the court rendered in that suit recites that it was tried before the court without a jury on the 18th day of June, 1894, upon evidence introduced by the respective parties in support of their respective pleadings, upon which the court found the facts to be as follows:

'First. That the complainant, Thomas N. Howell, is now, and for six years last past has been, a citizen of the United States, and of the territory (now state) of Wyoming. Second. That for the period of four years last past the said complainant has had and enjoyed and (the) possessory right to all of those certain lands described in the bill of complaint herein, situated in the county of Fremont and state of Wyoming, to wit: (Describing the various subdivisions of public lands occupied by the complainant.) Third. That said lands are agricultural lands, and are arid, requiring artificial irrigation to produce any kind of crop thereon, and that the said Thomas N. Howell, complainant, has occupied and used said lands for agricultural and other purposes for a period of four years last past, and that he intends to so occupy and cultivate the same as such, and in good faith to acquire title thereto. Fourth. That the said Thomas N. Howell, complainant, on or about the 1st day of August, 1890, filed a water right and appropriated the waters of Sage creek, a tributary of the Stinking

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