Merrill v. Bishop

• Decision Date: 06 November 1951
• Docket Number: No. 2480,2480
• Citation: 237 P.2d 186,69 Wyo. 45
• Parties: MERRILL et al. v. BISHOP et al.
• Court: Wyoming Supreme Court

Page 186

237 P.2d 186

69 Wyo. 45

MERRILL et al. v. BISHOP et al.

No. 2480.

Supreme Court of Wyoming.

Nov. 6, 1951.

Noble & Cavalli, Thermopolis, Kenneth R. L. Simmons, Billings, Mont., for appellants.

Norman B. Gray, former Atty. Gen., Marion R. Smyser, former Deputy Atty. Gen., Harry A. Thompson, former Asst. Atty. Gen., Harry S. Harnsberger, present Atty. Gen., for respondents.

BLUME, Justice.

The petition in this case filed on October 18, 1949 alleges and discloses the following facts: The defendant L. C. Bishop is the State Engineer for the State of Wyoming; the defendant Guy W. Higby is the Water Superintendent in Division No. 3 of the state; the defendant P. T. Strain acts as Water Commissioner of the state at Large; the defendant Jack Haynes is the acting Water Commissioner for District No. 5 of Division No. 3. By virtue of a Treaty of July 3, 1868, 15 Stat. 673, a tract of land in the then territory, but now State of Wyoming, was set aside and reserved for the use of the Shoshone Indians as a home and abiding place. This reservation, called the Shoshone or Wind River Indian reservation, commenced at the mouth of Owl Creek, thence running southerly, thence running westerly, thence northerly, to the headwaters of Owl Creek, thence along the middle of the channel of Owl Creek to the point of beginning. (It was west of the town of Thermopolis in this state.) The waters of all streams arising, flowing through, or bordering upon the reservation, as established by the treaty, were as of the date of the treaty reserved and set aside for beneficial use upon all lands of the foregoing reservation susceptible of irrigation. Each acre of land in the reservation acquired a vested right, and has as an appurtenance thereto, the right to a pro rata share of the waters above mentioned. Plaintiffs are the owners of certain lands in Section 5, Township 8 North, Range 2 East, W.R.M. and Sections 26, 34 and 35 in Township 9 North, Range 2 East, W.R.M. These lands appear to be in close proximity to Owl Creek, a stream constituting the northern and northeastern boundary of the original reservation above mentioned, and are located within the reservation as established in 1868. These lands were formerly Indian allotments in this reservation for which patents had theretofore been issued to various Indians, and which, together with all appurtenances, had been conveyed by the Indian allottees to the predecessors of plaintiffs and had subsequently been conveyed to the plaintiffs herein, who are now the owners thereof. The lands of plaintiffs were and are now susceptible of irrigation by the waters from Owl Creek. Subsequently, by an Act of Congress of March 3, 1905, 33 Stat. 1016, a treaty between the Indians upon the foregoing reservation and the United States was ratified by the Congress of the United States. By this treaty the lands between Owl Creek and Wind River to the south were ceded and relinquished to the United States, and became a part of the public domain of the United States until granted out and conveyed by the United States to the settlers thereon, and were open to settlement under the Homestead Laws. But excepted therefrom were lands allotted to the Indians in severalty residing upon said reservation, among which lands so allotted to Indians in severalty are the lands of plaintiffs hereinabove mentioned. Article X of the Treaty of 1905 also provided: 'It is further understood that nothing in this agreement shall be construed to deprive the said Indians of the Shoshone or Wind River Reservation, Wyoming, of any benefits to which they are entitled under existing treaties or agreements, not inconsistent with the provisions of this agreement.' By the establishment of the Wind River Indian Reservation on July 3, 1868 the United States at that time became the trustee of the Shoshone Tribe of Indians holding legal title to all of the lands and waters of the Wind River Reservation and there was as above mentioned then reserved to said Indians and their successors in interest for irrigation and other beneficial uses upon the lands of said reservation, and exempted from appropriation under territorial or state laws or otherwise all of the waters of reservation streams necessary for the successful irrigation of irrigable lands, including all of the waters of Owl Creek in such amounts as are necessary for the successful irrigation of plaintiffs' lands.

Paragraph X of the petition alleges: 'That the predecessors in interest and title to plaintiffs, with reasonable diligence, constructed irrigation systems for the diversions of the waters of Owl Creek and its tributaries to be applied to beneficial use upon their lands susceptible of irrigation. That the plaintiffs * * * have under their irrigation systems 809.08 acres of land susceptible of irrigation and now being irrigated which require for the successful irrigation thereof one cubic foot of water per second of time for each seventy acres of irrigable land.'

Paragraph XI alleges: 'That the rights of the plaintiffs as herein set forth to the use of the waters of Owl Creek and its tributaries are prior and superior to any and all other rights to the use of the waters of Owl Creek and its tributaries.'

Paragraph XII alleges: 'That during the irrigation season of 1949, defendant, Jack Haynes, Water Commissioner of District No. 5 of Division No. 3, State of Wyoming, acting with defendant P. T. Strain, who claims to be Water Commissioner at Large for the State of Wyoming, and Assistant State Engineer, * * * both claiming to be acting as officers of the State of Wyoming and under the direction of the defendants L. C. Bishop and Guy W. Hig-by, did wilfully and without warrant of law, and without prior notice to the plaintiffs herein, close all of the headgates of the irrigation ditches maintained by the plaintiffs on Owl Creek and its tributaries, thus causing the complete natural flow of the said streams to flow down the channel thereof, which said wrongful closing and shutting down of the headgates aforesaid by the above named defendants caused plaintiffs to be deprived of the use of the waters of said stream and caused them great loss and damage.' It is further alleged that the defendants have threatened to again shut down the headgates above mentioned unless enjoined, and that plaintiffs have been damaged in the sum of $5,000. Plaintiffs accordingly prayed that permanent injunction be issued by the court restraining the defendants from, in any manner, interfering with the headgates of plaintiffs located on the lands herein described and from, in any manner, interfering with or preventing the use by plaintiffs of an amount of water from Owl Creek necessary for the irrigation of their lands on the basis of one cubic foot of water per second of time for each seventy acres and that plaintiffs have such other and further and general relief as may be in accord with equity and good conscience.

Copies of the Treaty of 1868 and the Treaty of 1905 were attached to the petition of the plaintiffs.

None of the defendants in this case answered. L. C. Bishop, the State Engineer of this state, filed a demurrer in this case on the ground that the petition discloses that there is a defect of parties. The court sustained the demurrer, and the plaintiffs not pleading further, judgment was entered dismissing the action without prejudice, and the plaintiffs have appealed to this court.

Counsel for plaintiffs and appellants contend that they are successors in interest of allottees and patentees on the original Indian reservation created in 1868, and that they have an unquestioned right of priority to the waters of Owl Creek as of that date; that this is not an action to adjudicate the priorities of the appropriators of waters from a stream, but an action in tort, of which none but the defendants are guilty, and no other parties need be brought in or are proper parties. Counsel for the respondents, on the other hand, contend that the appropriators of waters from Owl Creek under the laws of this state are interested in and affected by this action and should have been made parties herein. They call our attention to the fact that these waters were adjudicated under the laws of this state and that the fact of this adjudication appears in a document published by authority of the legislature. Hence, they argue that we must take judicial notice of that fact. We may admit that to be true, at least for the purposes of this case. That document shows the names of the appropriators, the date, source, and amount of the appropriation. Pages 84 to 90 of that document show that there are in the neighborhood of 250 parties who are shown to be the appropriators under the laws of this state from Owl Creek and its tributaries. This does not take into consideration the appropriators from Big Horn River, the main stream, who, too, may have some interest in the waters of Owl Creek. The earliest appropriation from Owl Creek and its tributaries is shown by that document as of 1880, so that if plaintiffs have a priority to the waters of Owl Creek and its tributaries as of 1868, the appropriators from the stream under the laws of this state have an inferior right. Notwithstanding that counsel for respondent contend that these parties, though junior in right, are necessary parties herein, and that accordingly the petition in the case discloses a defect of parties and that the demurrer herein was properly sustained.

The case at bar is somewhat different from any of the decided cases as far as we have found. We have not heretofore been called on to consider the rights of Indians or those of their successors in interest. The issue herein, in view of the demurrer, is rather a limited one. We do not know what contentions will in the future be made by the defendants or the parties interested in the waters of Owl Creek, or what ultimate facts may appear. And we shall not anticipate them herein. So our decision...