Merrill v. Bishop

• Decision Date: 13 September 1955
• Docket Number: No. 3,No. 5,No. 2669,3,5,2669
• Citation: 287 P.2d 620,74 Wyo. 298
• Parties: Mary MERRILL, H. Triangle Livestock Company, Inc., a Wyoming corporation, John A. Graboski, H. O. Davis and Bertha Jones, Plaintiffs and Appellants, v. L. C. BISHOP, as State Engineer of the State of Wyoming, Thane H. Baldwin, Jr., as Water Superintendent for Divisionof the State of Wyoming, P. T. Strain, as Water Commissioner at Large for the State of Wyoming, and as Assistant State Engineer of the State of Wyoming, Willard Bader, as Water Commissioner of Districtof Divisionof the State of Wyoming, Clyde Duncan and Forrest Daniels, and the successors in office of the Defendants, Bishop, Baldwin, Strain and Bader, Defendants and Respondents.
• Court: Wyoming Supreme Court

Page 620

287 P.2d 620

74 Wyo. 298

Mary MERRILL, H. Triangle Livestock Company, Inc., a Wyoming corporation, John A. Graboski, H. O. Davis and Bertha Jones, Plaintiffs and Appellants, v. L. C. BISHOP, as State Engineer of the State of Wyoming, Thane H. Baldwin, Jr., as Water Superintendent for Division No. 3 of the State of Wyoming, P. T. Strain, as Water Commissioner at Large for the State of Wyoming, and as Assistant State Engineer of the State of Wyoming, Willard Bader, as Water Commissioner of District No. 5 of Division No. 3 of the State of Wyoming, Clyde Duncan and Forrest Daniels, and the successors in office of the Defendants, Bishop, Baldwin, Strain and Bader, Defendants and Respondents.

No. 2669.

Supreme Court of Wyoming.

Sept. 13, 1955.

W. M. Haight, Riverton, Joseph Cavalli, Thermopolis, for appellants.

Howard B. Black, Asst. Atty. Gen., Paul T. Liamos, Jr., Deputy Atty. Gen., James L. Hettinger, Robert A. McKay, Asst. Attys. Gen., for respondents.

BLUME, Justice.

This is an action to enjoin the State Engineer and other water officials from interfering with and closing their head gates in connection with their water rights from Owl Creek in Fremont county, Wyoming and tributaries thereof. The case is here the second time. See Merrill v. Bishop, 69 Wyo. 45, 237 P.2d 186. The first time the case was before us it involved the question as to whether or not a demurrer filed to the petition herein was properly sustained on account of defect of parties. We held there was no such defect of parties in view of the fact that the demurrer admitted the plaintiffs had superior rights to any of the waters involved herein. Thereafter a second amended petition was filed herein which, however, with minor differences is approximately the same as the original petition filed in the cause. However, successors in office of any of the water officials, and Clyde Duncan and Forrest Daniels were added as parties. The latter two filed a pleading claiming substantially the same rights as the plaintiffs, except as to the difference in land. The water officials appeared and answered, denied that plaintiffs and parties situated like them had any superior water rights as claimed by them, and denied that they unlawfully interfered with and closed the head gates of plaintiffs and others situated likewise. After trial of the case, the trial court denied an injunction, found in favor of the water officials and against the plaintiffs and Forrest Daniels. Clyde Duncan appeared on the witness stand and stated that he was satisfied with the distribution of water to him, and the cause was accordingly dismissed as to him. Judging from the brief of counsel for the appellants, his right was adjudicated by the federal district court of Wyoming on June 26, 1916, and seems accordingly to be res judicata at least so far as the water officials of the state are concerned.

The facts herein are substantially as follows: In July 1868, a treaty was entered into between the Indians and the United States, 15 Stat. 673, pursuant to which, among other things, an Indian Reservation generally known as the Shoshoni or Wind River Reservation was created. That Reservation as so created extended from Owl Creek in the north to Sweetwater and Popo Agie Rivers on the south with the Big Horn River on the east and extending some miles west from that river. Article 6 of that treaty provided:

'If any individual belonging to said tribes of Indians, or legally incorporated with them, being the head of a family, shall desire to commence farming, he shall have the privilege to select, in the presence and with the assistance of the agent then in charge, a tract of land within the reservation of his tribe, not exceeding three hundred and twenty acres in extent, which tract so selected, certified, and recorded in the 'land book,' as herein directed, shall cease to be held in common, but the same may be occupied and held in the exclusive possession of the person selecting it, and of his family, so long as he or they may continue to cultivate it.

'Any person over eighteen years of age, not being the head of a family, may in like manner select and cause to be certified to him or her, for purposes of cultivation, a quantity of land not exceeding eighty acres in extent, and thereupon be entitled to the exclusive possession of the same as above described. For each tract of land so selected a certificate, containing a description thereof, and the name of the person selecting it, with a certificate endorsed thereon that the same has been recorded, shall be delivered to the party entitled to it by the agent, after the same shall have been recorded by him in a book to be kept in his office subject to inspection, which said book shall be known as the 'Shoshonee (eastern band) and Bannack Land Book.''

Article 11 of that treaty also provided:

'No treaty for the cession of any portion of the reservations herein described which may be held in common shall be of any force or validity as against the said Indians, unless executed and signed by at least a majority of all the adult male Indians occupying or interested in the same; and no cession by the tribe shall be understood or construed in such manner as to deprive without his consent any individual member of the tribe of his right to any tract of land selected by him, as provided in Article VI. of this treaty.'

The foregoing treaty was approved by the Congress of the United States on February 24, 1869. On April 21, 1904, the foregoing treaty was amended by an addition thereto, approved by Congress on March 3, 1905. 33 Stat. 1016. Pursuant to this treaty, the Shoshoni or Wind River Indians ceded to the United States a portion of the lands specified in the treaty, namely that portion situated between Owl Creek on the north and Wind River to the south. The lands involved in this case are situated within the boundaries of the lands ceded in 1904. The last mentioned treaty contains the following provision as Article 10:

'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.'

The lands of the plaintiffs herein (white persons) were originally allotted to Indians pursuant to the foregoing treaties, and by them conveyed to plaintiffs. It is alleged that patents for these allotments were issued in August 1916, one on July 29, 1918, one on January 11, 1919, one on October 28, 1919, one on August 19, 1932. It does not appear whether or not the lands involved herein were occupied by the Indians previous to the time that patents or certificates were issued to them, nor does it appear when the plaintiffs herein bought the lands from these Indians.

Plaintiffs herein contend that their rights originated under the treaty of 1868 and that accordingly they and each of them have a water right for each and every irrigable acre of land owned by them with a priority of 1868 and hence superior to the rights of any other appropriators from Owl Creek or its tributaries, the earliest of which originated in about 1880. The water officials on the other hand contend that the plaintiffs and Forrest Daniels failed to show that they were entitled to any specific amount of water, and that an injunction herein was properly denied. The brief of the Attorney General further states:

'It was contended at the trial of the case and is still contended that where an Indian has applied water to a beneficial use, for instance, on a date of September 1, 1910, and continues to use the water without abandonment and sells his land in 1915 to a white man, the white man would be entitled to claim a beneficial use relating back to September 1, 1910. It is, of course, our position that where no beneficial use of water is shown until after the Indian has disposed of his land to a white man, the white man is not entitled to any theory of relation back to a priority of the time of the Indian Treaty of 1868.'

In Winters v. United States, 9 Cir., 143 F. 740, affirmed 9 Cir., 148 F. 684; Id., 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340, the court had under consideration a treaty of Indian lands ceded to the United States situated in the state of Montana. The treaty did not expressly reserve any water rights but the court held it was reserved impliedly, inasmuch as water was necessary for the use of the Indians. It may be noted in the statement of facts in that case that prior to the time any water had been appropriated from the stream in question by parties outside the reservation, the Indians and their agents had appropriated water for use of the buildings of the agency and land in connection therewith and had further appropriated water for the use of some 30,000 acres of land in the reservation. The court, however, did not discuss these facts, so we do not know whether or not they had any influence in the decision of the case. The same situation appears in the case of Conrad Inv. Co. v. United States, 9 Cir., 161 F. 829, 88 C.C.A. 647. Appellants rely strongly on the case of United States v. Powers, 9 Cir., 94 F.2d 783, affirmed 305 U.S. 527, 59 S.Ct. 344, 83 L.Ed. 330. We do not find that case to have any particular bearing on the case at bar except that it affirms the rule laid down in Winters v. United States, supra.

In Skeem v. United States, 9 Cir., 273 F. 93, 94, the court considered the treaty of 1868, heretofore mentioned, as well as other treaties and considered allotments made to Indians pursuant thereto. It seems that in 1889 and for some years prior thereto these allotments were cultivated and irrigated at least to some extent. It further seems that the lands embracing these allotments were subsequently ceded by the Indians by treaty of 1898, 31 Stat. 672, which however, provided in Article 8 as follows:

"That water from streams...