Kirby v. United States, for and on behalf of Crow Tribe of Indians

• Citation: 273 F. 391
• Decision Date: 02 May 1921
• Docket Number: 3607.
• Parties: KIRBY et al. v. UNITED STATES, for and on Behalf of CROW TRIBE OF INDIANS.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

273 F. 391

KIRBY et al. v. UNITED STATES, for and on Behalf of CROW TRIBE OF INDIANS.

No. 3607.

United States Court of Appeals, Ninth Circuit.

May 2, 1921

[Copyrighted Material Omitted]

Grimstad & Brown, of Billings, Mont., and Gunn, Rasch & Hall and Hugh Thomas Carter, all of Helena, Mont., for plaintiffs in error.

George F. Shelton, U.S. Atty., of Butte, Mont., for defendant in error.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

The merits of the controversy depend upon the construction of the clause of the contract which is quoted above. The court below construed it to mean that for the rental of $31,950 per annum the defendants could graze any number of cattle up to the equivalent of 9,000 head throughout each year taken separately, and that for any excess of that number the defendants were to pay $4.50 per head grazed during the equivalent of a year. Said the court:

'The language of the lease, that this $4.50 per head is payable for 'any excess over and above such maximum number,' does not necessarily import only cattle over and above 11,500 head, the last antecedent and maximum eo nomine, but consistent with the writing and construction can be and is taken to import cattle over and above 9,000 head, the first antecedent and also a maximum, although not in terms so characterized. Nine thousand head are the maximum for the year as a whole, the principal thing, and the 11,500 are the maximum at any time (and for such time as will serve to accomplish the 9,000 maximum), an incidental thing.'

We agree with that construction of the contract. It is obvious that there was error in one phrase of the instrument, but notwithstanding the error, the true intention of the contracting parties is not difficult to ascertain. It was clearly not their intention that there should be any free grazing, and the construction contended for by the defendants would result in free grazing for all cattle in excess of 9,000 and under 11,500.

The intention of the contracting parties is made clear by referring to the written offer which the defendants submitted preliminary to the contract, and which may be properly taken into consideration in construing the instrument. United States v. Bethlehem Steel Co., 205 U.S. 105, 118, 27 Sup.Ct. 450, 51 L.Ed. 731; Northwestern Terra Cotta Co. v. Caldwell, 234 F. 491, 499, 148 C.C.A. 257. In that proposal the defendants wrote:

'The minimum amount to be paid per annum, in semiannual payments in advance, $31,950. * * * The number of cattle to be grazed on this district to be 9,000 head, at the rate of $3.55 per head per annum, and that any cattle grazed on this district in excess of 9,000 head shall be paid for at the same rates per head per annum.'

The defendants contend that the provision for the payment of $4.50 per head was intended either as a penalty or as liquidated damages for violation of the contract in grazing an excess number of cattle on the leased premises, that in providing for such payment no provision is made about the average number of cattle, and that the true construction is that for all cattle placed on the leased land in excess of the maximum number the lessee should pay $4.50 per head, even if the cattle were on the land but for a single day, a rate so disproportionate to the value of the grazing privilege that it must be considered as a penalty, and it is argued that it is immaterial whether the $4.50 rate be regarded as a penalty or as liquidated damages, in view of sections 5054 and 5055 of the Revised Codes of Montana of 1907. The contention cannot be sustained. The provision for the payment of $4.50 per head is neither in the nature of a penalty nor liquidated damages. It is a stipulated sum to be paid for a specified privilege.

The contract does not bind the defendants to pasture no more cattle per annum than the lowest number therein specified. The plaintiff does not sue for breach of a contract. There is no allegation in the complaint upon which either a penalty or liquidated damages can be predicated. There was in fact no breach of contract. The agreement left the defendants at liberty to pasture as many cattle on the lands as they might see fit to place thereon, up to the limit of 11,500, but it provided that for cattle in excess of 9,000 and for the exercise of such privilege they should pay an increased rate of pasturage per head. The rate was increased doubtless on the theory that the presence of such excess cattle would result in some injury to the pasture, but that does not mean that the rate so fixed is compensation for damage. It was but payment for that which the plaintiff parted with and the defendants received.

In view of the construction which we have given to the contract, it becomes unnecessary to discuss the assignment that the court erred in holding that the Surety Company was liable on the bond for the excess number of cattle grazed. Nor do we find that the court below erred in construing the contract to authorize the averaging of the cattle for each year separately, instead of for a two-year period. The contract was clearly divisible into two year periods. The rent was apportioned to each year, and was payable for each year, and the conclusion is reasonable that the provision in regard to extra payment for excess cattle applied to each year.

It is contended that, as the contract expressly limits the number of cattle which may be grazed on the leased premises, the grazing thereon of any excess number was without the consent of the Crow Tribe of Indians, and in violation of section 2117 of the Revised Statutes (Comp. St. Sec. 4107), and that the agreement to pay for the excess cattle could impose no liability; it being an agreement to pay for violating the statute by placing cattle on the reservation without the consent of the tribe. But it does not appear from the record that any provision of the lease was inserted therein without authority from the Crow Indians. The complaint alleges and the answer admits that the lease was made in pursuance of a resolution of the Crow Tribal Council, and that the same was approved by the Secretary of the Interior. The lease itself recites that it was made on behalf of the Crow Tribe of Indians, under and pursuant to the action of the council of the tribe. The leased lands were subject to lease, under section 3 of the Act of February 28, 1891, 26 Stat. 795 (Comp. St. Sec. 4218). The lands had been 'bought and paid for' within the meaning of that statute. Strawberry Valley Cattle Co. v. Chipman, 13 Utah, 454, 45 P. 348. In Maricopa & Phoenix Railroad v. Arizona, 156 U.S. 347, 15 Sup.Ct. 391, 39 L.Ed. 447, the court, answering the contention that it did not appear by the record that the consent of the Indians had been given to a grant of a right of way over their land, said:

'In the first place, as the company has taken the rights granted by the statute, the legal presumption of duty performed (omnia rite, etc.) requires us to assume that the consent was given in accordance with law. And again, the company, having assumed and exercised rights which it could possess only by virtue of such consent, cannot be permitted to

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