United States v. Powers

• Decision Date: 29 July 1936
• Docket Number: No. 2962.,2962.
• Parties: UNITED STATES v. POWERS et al.
• Court: U.S. District Court — District of Montana

16 F. Supp. 155

UNITED STATES v. POWERS et al.

No. 2962.

District Court, D. Montana.

July 29, 1936.

John B. Tansil, U. S. Dist. Atty., of Butte, Mont., and Kenneth R. L. Simmons, of Billings, Mont., for the United States.

T. H. Burke, E. E. Collins, Ben Harwood, Johnston, Coleman & Jameson, and Franklin A. Lamb, all of Billings, Mont., for defendants.

PRAY, District Judge.

This is a suit in equity brought by the plaintiff to restrain the twenty-two defendants above named from in any manner diverting the waters of Lodge Grass creek and the Little Big Horn river and their tributaries, flowing within the Crow Indian Reservation in Montana, and from maintaining dams and ditches therein, and from interfering in any manner with the flow of these streams and their tributaries, and the use of the waters thereof. The order to show cause issued by the court was later vacated, and upon denial of the motions to dismiss the complaint, the defendants were granted until October 10, 1934, to file their answers. On that date answers were filed by all of the defendants, except Thomas R. Powers, Edward Schroeder, Reg. Pearce, George S. Gibson, Joseph A. Graham, Dominic Stevens, and C. E. Linthacum, whose defaults were duly entered. Replies were filed by plaintiff to all answering defendants. Motions to make certain other parties defendants were denied.

This reservation was created and set apart for the benefit of the Crow Indians by Treaty of May 7, 1868 (15 Stat. 649). Later on the reservation was diminished by other treaties (22 Stat. 42, 26 Stat. 1039, and 33 Stat. 353, 357). It is agreed that the present boundaries of the reservation as set forth in the complaint are correct. The work of making allotment of lands to the Indians was commenced in 1885, under the Act of April 11, 1882, which ratified the agreement of the Indians submitted June 12, 1880. Allotments were continued under the Act of February 8, 1887 (24 Stat. 388).

The Act of Congress of March 3, 1891 (26 Stat. 989, 1039, § 31), ratified the agreement of December, 1890, with the Crow Indians whereby they ceded a part of the reservation; this agreement provided that any person entitled to the privilege of selecting land in severalty under the provisions of the sixth article of the Treaty of May 7, 1868 (15 Stat. 649, 650), should have the right of selection in any part of the ceded strip or portion for a period of sixty days under this agreement.

Allotment work was begun May 28, 1890, under the general allotment act, and continued in 1901 under the acts of February 8, 1887 (24 Stat. 388), and February 28, 1891 (26 Stat. 794), and as specified in the Act of April 11, 1882 (1 Kappler Indian Laws & Treaties, 195). The quantity of irrigable land to be given each Indian was fixed at forty acres. Plaintiff claims that none of the lands now owned or in control of the defendants were classified as irrigable lands for the reason that none of them were situated under the Crow Irrigation Project. That allotments were made in March, 1921, under the Act of June 4, 1920 (41 Stat. 751). That under the Act of June 25, 1910 (36 Stat. 855, 856, 859), there was allotted the remaining unallotted lands, and that the agent classified all the allotted and unallotted lands in units of forty acres, making one unit of irrigable land under government constructed ditches equivalent to two units of nonirrigable agricultural land and four units of nonirrigable grazing land. That all of the lands owned or controlled by the defendants were classified by the agent, Charles E. Roblin, as grazing or agricultural land, with the exception of portions of three forty-acre tracts owned by the defendant Antler Land Company, which were classified as irrigable; two of them lie under a proposed ditch known as upper Little Horn No. 1, which has never been constructed, and the third lies partly under the Bozeman Trail Ditch and the above-named proposed ditch.

That all of the lands of the defendants are situated within the boundaries of the Crow Indian Reservation in the state of Montana, which were acquired, either by mesne conveyances from the original Indian allottees, or their successors in interest, or by purchase at government sale of deceased allottees' lands, as authorized by the Act of May 8, 1906 (34 Stat. 182, 3 Kappler 181 25 U.S.C.A. §§ 349 and note, 404 note).

The waters diverted by these defendants are from Little Big Horn river or Lodge Grass creek, or their tributaries. Some of the defendants introduced in evidence notices of appropriation of water under the Montana statutes from these streams. None of the allotments were approved until March 27, 1907. The Act of May 8, 1906, removed the twenty-five year restriction period and allowed patent in fee to issue to the Indian whenever the Secretary of the Interior considered him competent. The Crow Irrigation Project had its beginning in the construction of the Reno Ditch in 1884 and 1885, which was enlarged and extended in 1917. The Act of March 3, 1891, was in pursuance of an agreement with the Indians to construct the Crow Irrigation Project with moneys due the Crow Tribe for the cession of their right to occupancy of certain tracts of land to the United States. This act gave the Secretary authority to expend $200,000 "in the building of dams, canals, ditches, and laterals for the purposes of irrigating in the valleys of the Big Horn, and the Little Big Horn Rivers and on Pryor Creek and such other streams as the Secretary of the Interior may deem proper." 26 Stat. 1039, 1040, § 31.

May 5, 1891, a Superintendent of Irrigation was appointed with instructions as follows: "The general plan should include such separate systems as may be necessary to properly irrigate the different portions of the reservation, but the aim to serve the greatest amount of irrigation of Indian lands with the least expense, should be strictly followed."

That the dates of construction and carrying capacities of each government ditch is as follows:

                Date of construction.         Ditch.                       Capacity
                      1885              Reno                         85 Cu. ft. per second
                      1893              Forty Mile                   89  "   "   "     "
                      1893              Lodge Grass No. 1           223  "   "   "     "
                      1892              Agency                      209  "   "   "     "
                      1904              Lodge Grass No. 2            37  "   "   "     "
                      1910              Upper Little Horn No. 2     115  "   "   "     "
                

Surveys were made for the proposed ditches known as Little Big Horn Nos. 1 and 3, but were rejected. That by 1915 the approximate irrigable acreage by means of this project had been determined as follows:

                Upper Little Horn No. 2        3,248.36 acres
                Forty-Mile Ditch               1,060.42   "
                Reno Ditch                     3,619.13   "
                Agency Ditch                   6,149.19   "
                Lodge Grass No. 1              4,868.38   "
                Lodge Grass No. 2              1,828.52   "
                

That the acreage actually irrigated by the said project in the Little Big Horn and Lodge Grass areas from waters of these streams and their tributaries during 1934 was 8,084 acres divided among the above units as follows:

                Agency Unit                      2,347 acres
                Reno Unit                        1,696   "
                Forty-Mile Unit                    311   "
                Upper Little Horn No. 2 Unit     1,783   "
                Lodge Grass No. 1 Unit           1,132   "
                Lodge Grass No. 2 Unit             210   "
                

That this project is owned jointly by the United States and the Crow Indians. Expenditures for construction to June 30, 1926, amounted to $1,977,890.10, of which sum, $1,565,235.31 were expended from tribal funds, $139,049.02 from gratuity appropriations, and $273,594.77 from reimbursable appropriations.

That the construction of a majority of the private ditches on the reservation began in 1916, and that the construction of all the dams and ditches of the defendants and the diversion of the waters of these streams commenced many years after the construction of each of the government units, and after the use of the waters of said streams by the Crow Irrigation Project, so styled, with the exception of the Peters Ditch owned by the defendants Dethlefsen, which was begun in 1896. That no consent was ever given the defendants to construct their dams and ditches by the plaintiff.

That the Little Big Horn river is an unnavigable stream rising in the Big Horn Mountains and flowing in a northerly direction across said reservation, crossing the southern boundaries thereof and emptying into the Big Horn river near Hardin, Montana. That the diversions from the Little Big Horn river are set out on the map introduced by plaintiff as they appear going downstream, as follows:

Tschirgi Ditch.

Upper Little Horn Ditch No. 2 (government).

Bozeman Trail Ditch (private diversion).

Belken-Campbell Ditch. Forty-Mile Ditch (government). Hennan Ditch. Reno Ditch (government). Agency Ditch (government).

The Bozeman Trail Ditch Company diverts the waters of said river for the irrigation of lands owned by whites and members of the Crow Tribe, under a grant to it by the United States. At the time the agreement was made respecting this grant of authority so to divert the waters aforesaid, 1,961 acres were owned by the Indians and 858 by the white men. Lodge Grass creek is a stream rising in the Big Horn Mountains and flowing in a northerly direction on the said reservation and emptying into the Little Big Horn river near Lodge Grass, Montana. The diversions made from this creek, going downstream, as shown on the map, are as follows:

Yates Ditch. Dethlefsen Peters Ditch. Billie Miller Ditch. Robert J. Miller Ditch. Lodge Grass No. 2 (government). Lodge Grass No. 1 (government).

That the principal diversions of the defendants on each of these streams are made above the government's diversions.

Plaintiff further claims that there was not enough water available during the season of 1934 to...