Lewis v. Hanson
| Decision Date | 14 February 1951 |
| Docket Number | No. 9015,9015 |
| Citation | 124 Mont. 492,227 P.2d 70 |
| Parties | LEWIS v. HANSON et al. |
| Court | Montana Supreme Court |
Rockwood Brown, Horace S. Davis, Norman Hanson and William H. Bellingham, all of Billings, for appellants.
Kenneth R. L. Simmons, Billings, Leonard S. Strahan, Lovell, Wyo., for respondent.
This is an appeal from a final judgment. A jury was impanelled but at the conclusion of the evidence its services, by agreement of the parties, were dispensed with.
The court made the following findings and conclusions: That plaintiff is the owner of certain described lands in Big Horn county all of which lie within the Crow Indian Reservation as established by treaty of May 7, 1868, 15 Stat. 649, and as it still exists after being diminished in area by later Congressional Acts; that the defendants are the owners of certain described land situated in the same township and range as that of plaintiff and that it was within the reservation as originally defined by treaty on May 7, 1868, but that by agreement between the Crow Tribe of Indians and the United States, ratified by the Act of March 3, 1891, 26 Stat. 1039, defendants' lands with others were ceded to the United States and became a part of the public domain lying without the boundaries of the reservation as it now exists; that Dry Head Creek rises and flows wholly within the Crow Indian Reservation except for approximately 1/4 of a mile and flows in a general easterly direction to its confluence with the Big Horn River; that the South Fork of Dry Head Creek rises off the reservation and flows in a northerly direction upon and across the lands of defendants, and thence across some of the lands of plaintiff emptying into Dry Head Creek on plaintiff's land; that part of plaintiff's land was deeded without limitation or restriction by the United States to Charles Phelps, a Crow Indian allottee on March 10, 1915; Phelps thereafter deeded to Frank M. Heinrich a white man, who later deeded to plaintiff.
Some of plaintiff's land was deeded without limitation or restriction by the United States to Pearl Scott, a Crow Indian allottee on July 26, 1923; Pearl Scott on May 20, 1926, deeded to Frank M. Heinrich and he to plaintiff; the other tract of plaintiff's lands was deeded without limitation or restriction by the United States to Charles Phelps and Rose Phelps, the heirs of Lee Phelps, a Crow Indian allottee on November 3, 1919; they were deeded to Frank Heinrich on September 13, 1919, and later by him to plaintiff; that none of the waters of Dry Head Creek or its tributary the South Fork were ever taken, appropriated or used by the Indian allottees; that the first use of the waters of Dry Head Creek or its tributary the South Fork on any of the lands now owned by plaintiff was in the year 1917 by Frank M. Heinrich; that of plaintiff's lands 150 acres are susceptible of irrigation, with the waters of the South Fork of Dry Head Creek; that on April 1, 1904, C. L. Hammond appropriated under the laws of Montana, 100 miner's inches of the waters of the South Fork of Dry Head Creek for use on lands now owned by defendant, Eva M. Hammond as successor in interest of C. L. Hammond and has continuously used and now uses the same to irrigate 44.63 acres of otherwise arid and unproductive land; that on May 8, 1897, one A. Gressman and Henry Mogan appropriated under the laws of Montana 500 miner's inches of the waters of the South Fork of Dry Head Creek for use on lands now owned by defendants Floyd Hanson, Ezra Hanson and Sara Hanson as successors in interest of A. Gressman and Henry Mogan and that the waters have been continuously used and are now being used by defendants on their lands for the irrigation of 39.26 acres of otherwise arid and unproductive land; that a minimum of one miner's inch of water per acre in necessary and required for the efficient irrigation of the irrigable acres of plaintiff's and defendants' lands; that the maximum amount of water flowing in the South Fork of Dry Head Creek available for the irrigation of the lands of plaintiff and defendants is 150 miner's inches; that all of the waters of the South Fork are needed for the adequate irrigation of plaintiff's lands; that the Secretary of Interior has never made any allocation or distribution of the waters of Dry Head Creek or its tributaries nor has the United States done so through any other means; that by the establishment of the Crow Indian Reservation in 1868 the United States became and ever since has been the trustee for the Crow Tribe of Indians holding legal title to all the waters within the reservation and that there was reserved for the Crow Indians on May 7, 1868, all the waters of reservation streams for beneficial uses upon reservation lands.
As conclusions the court found that each acre of land on the reservation susceptible of irrigation with the waters of the South Fork of Dry Head Creek has a first and equal right to the use of such waters with the date of priority as of May 7, 1868, and that plaintiff has a right to all the waters of Dry Head Creek necessary for the successful and adequate irrigation of 150 acres of his lands with the date of priority as of May 7, 1868, prior and superior to the rights of defendants. A decree was entered enjoining defendants from the use of any of the waters of Dry Head Creek and its tributaries until plaintiff has first diverted sufficient for the successful and adequate irrigation of 150 acres. From this decree, defendants have appealed.
Defendants contend that the court was without jurisdiction to proceed with the action since the United States was not a party.
Plaintiff takes the position that since the action is not one to adjudicate rights but only to enjoin defendants from diverting any of the waters of the South Fork of Dry Head Creek the United States is not an indispensable party and need not be joined. To adequately consider this question we must ascertain what conditions must exist before the court may enjoin the diversion of reservation waters.
By the Treaty of May 7,...
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