United States v. Powers, 8419.
| Decision Date | 08 March 1938 |
| Docket Number | No. 8419.,8419. |
| Citation | 94 F.2d 783 |
| Parties | UNITED STATES v. POWERS et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John B. Tansil, U. S. Atty., and R. Lewis Brown, Asst. U. S. Atty., both of Butte, Mont., and Kenneth R. L. Simmons, Dist. Counsel, Dept. of Interior, of Billings, Mont.
T. H. Burke and E. E. Collins, both of Billings, Mont., for appellees.
Before GARRECHT, MATHEWS, and HANEY, Circuit Judges.
This suit was brought by the United States to enjoin the defendants, residing within the Crow Indian Reservation in Montana from diverting any of the waters of Lodge Grass creek or Little Big Horn river and their tributaries. The bill in equity alleged the setting aside of the Crow Indian Reservation by treaty in 1868, 15 Stat. 649, with the intention of the United States to change the Crow Indians from their nomadic habits to those of a pastoral civilized people; that "there was at that time reserved sufficient water of the reservation for the needs of the Crow Tribe or nation of Indians for irrigation, domestic and other purposes"; that all of the lands within the reservation are arid in character and that, in order to make the land productive and suitable for agriculture, large quantities of water were required for irrigation "to-wit: one inch to the acre" and that irrigation ditches, canals, etc., were to be constructed for this purpose; that the normal flow of the Lodge Grass creek and the Little Big Horn river was insufficient to irrigate all of the lands lying within the reservation; that the United States undertook an irrigation project and, in pursuance thereof, caused to be constructed dams, ditches, canals, etc.; that these ditches divert the waters of said creek and river and conduct it to lands within the reservation; that there are 23,000 acres susceptible of being cultivated by irrigation if water were available but there is not sufficient water to irrigate more than 15,000 acres of lands lying under such irrigation project; that much of the cost of construction of this project was paid for out of the tribal funds of the Crow Tribe of Indians; that by reason of drought, the flow of these rivers has been diminished. Then follow paragraphs in which are described the lands of the various defendants and the amount of water diverted by each. Thereafter, the plaintiff alleged that the diversion of waters from said rivers by defendants was wrongful and without consent of the plaintiff, and those entitled to the use of said waters were unlawfully deprived thereof and thereby the plaintiff and its Indian wards were suffering irreparable injury.
The plaintiff asked in its prayer to the bill of complaint that "a permanent injunction issue, enjoining * * * defendants, * * * from maintaining or using said dams and ditches * * * and from diverting any of the waters from Lodge Grass Creek or Little Big Horn River and their tributaries. * * *" The above is all the relief specifically asked.
Answers were filed which, in general, denied the allegations of the bill, admitted ownership in land within the reservation, admitted the diversion of the waters of the rivers for irrigation purposes, and alleged that the defendants were successors in interest to the original patentees, Indians of the Crow Tribe. The lands had been acquired by purchase, some from the government at public sale, after the decease of the original allottees, and some by purchase from the original patentees. The defendants further alleged that the lands had been allotted to the Indians as irrigable lands and that these lands were purchased as such and with all rights.
Defendants Dethlefsen and Yates each filed an answer and counterclaim and alleged in their respective answers that there were numerous others similarly situated who should be made parties defendant and a motion was made to that effect, which was denied. The plaintiff, in its reply to the answer of the Dethlefsens, denied this allegation. At the trial defendants offered to prove this fact, to which objection was made, and sustained on the ground that the matter had been disposed of by the denial of the motion to make other parties defendant.
The court found from the evidence that defendants Tschirgi were not in possession of, nor had control over, the lands described in the bill; that the lands owned or leased by defendants Antler Land Co., the Belkens, Walsh, Campbell, the Henmans, the Millers, the Yates, and the Dethlefsens, were allotments formerly owned by members of the Crow Tribe of Indians and situated within the boundaries of the Crow Indian Reservation in the state of Montana; that the patents issued by the government to the original allottees, in addition to conveying the described lands, contained the following language: "Together with all rights, privileges, immunities and appurtenances of whatsoever nature thereunto belonging"; that there was no reservation of water rights in any of these patents or deeds; that the Indian allottees conveyed to the defendants, or their predecessors, or lessors, by warranty deeds, conveying the premises, "together with all tenements, hereditaments and appurtenances"; that defendants or their predecessors in interest constructed irrigation ditches to convey water from the Little Big Horn river and Lodge Grass creek to the lands in question and that the plaintiff aided in the construction of some of these ditches and headgates; that "One-half miners' inch of water per acre at the point of delivery on the irrigated land is sufficient for the proper irrigation of the lands belonging to the defendants and the Crow Indians which are irrigable from the Little Big Horn River and Lodge Grass Creek and their tributaries"; that no classification of lands of deceased Indians was made but that the "allotting agent did classify the lands of living Indians and such portions of the living Indians' lands as had a similar status to the lands of the Antler Land Company affected by this action, were classified as `irrigable'"; that the Crow Indians gave the Secretary of the Interior permission to construct...
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