Opinion
No. 7,695.
Submitted April 21, 1938.
Decided May 23, 1938.
Waters and Water Rights — Indian Reservations — When Rights Reserved to United States — Jurisdiction — Indian Allotments — Appropriation — When Complete — Notice of Appropriation — Evidence — Tributaries. Water Rights — Streams on Indian Reservations — Rights Reserved in United States for Use of Indians. 1. By the treaty of May 7, 1868, between the United States and the Crow Indians, establishing the Crow Indian Reservation, the federal Government impliedly reserved to itself the waters thereon for irrigation and other purposes for use by the Indians; hence they were not subject to appropriation by others. United States — Not Suable Without Consent of Congress. 2. The United States may not be sued at law or in equity without its consent evidenced by Act of Congress; the same exemption from judicial process extends to its property. Same — Actions — Parties. 3. The question whether the United States is in legal effect a party to an action is not always determined by the fact that it is not named as a party on the record, but depends upon the effect of the judgment that can be rendered in the proceeding. Water Rights — Water Appurtenant to Indian Lands Property of United States — Jurisdiction. 4. The right to use water appurtenant to lands on an Indian Reservation and held by Indians under trust patents, is the property of the United States, and state courts are without jurisdiction to enter a decree affecting such right. Same — Indian Allotments — Effect of Acquirement of Fee Simple Title. 5. Where an Indian allottee of lands on an Indian Reservation becomes seized of a fee simple title to the allotted land after removal of the restrictions of the trust patent, a conveyance of the land, in the absence of a contrary intention, operates to transfer the right to use the water appurtenant to the land. Same — Notice of Appropriation — Evidence. 6. The record of notice of appropriation of water conforming to the provisions of section 7100, Revised Codes, and filed as provided therein, is prima facie evidence of its contents. Same — When Appropriation Complete. 7. The steps necessary to be taken to make a completed appropriation of water are: posting notice, filing same with county clerk, commencing construction of a ditch within forty days after posting notice, prosecuting such work with reasonable diligence, and actual completion of the work of construction. Same — Completion of Construction of Ditch — What may Constitute Reasonable Diligence. 8. Where an appropriator of water filed a proper notice of appropriation on November 20, 1894, and shortly thereafter commenced construction of a ditch but had to suspend operations because of freezing weather, and because of the length and size of the ditch did not continuously work during the year 1895 but began irrigation in the spring of 1896, a finding that he did not proceed with reasonable diligence was unwarranted. Same — What Does not Constitute "Tributary." 9. Evidence in a water right suit that water flowed in a creek only in times of flood and that, except at such times, the water therein never reached the point where it joined another creek, a finding that the former was a tributary of the latter, held not justified.
Appeal from District Court, Big Horn County; Robert C. Stong, Judge.
Messrs. Lonabaugh Lonabaugh, of the Bar of Sheridan, Wyoming, for Appellants, submitted a brief.
Messrs. Guinn Maddox, for Respondents Spear-Morgan Livestock Company, Soldier Creek Livestock Company, Lloyd Cook, Euna P. Cook, John W. Lee, and Barbara Lee, submitted a brief; Mr. C.C. Guinn argued the cause orally.
Messrs. Burke, Anderson Kronmiller, for Respondent Cora B. Anderson.
Mr. Louis J. Marr, of Sheridan, Wyoming, for Respondents Irvin S. and Julia Jones, and C.E. and Margaret Erbaugh.
Mr. John B. Tansil, United States District Attorney, and Mr. Kenneth R.L. Simmons, District Counsel, U.S.I.I.S. Department of the Interior, appearing as amici curiae in behalf of the United States of America, submitted a brief and argued the cause orally.
Citing on questions relating to water rights: ( Murray v. Tingley, 20 Mont. 260-268, 50 P. 723; Bailey v. Tintinger, 45 Mont. 154, 169, 122 P. 575; Maynard v. Watkins, 55 Mont. 54, 173 P. 551; Wheat v. Cameron, 64 Mont. 494, 210 P. 761; Toohey v. Campbell, 24 Mont. 13, 60 P. 396; Wright v. Cruse, 37 Mont. 177, 95 P. 370; Gilcrest v. Bowen, 95 Mont. 44, 24 P.2d 141; Allen v. Petrick, 69 Mont. 373, 222 P. 451; Vidal v. Kensler, 100 Mont. 592, 51 P.2d 235; Cruse v. McCauley, 96 Fed. 369; Taughenbaugh v. Clark, 6 Colo. App. 235, 40 P. 153; Head v. Hale, 38 Mont. 302, 100 P. 222; Hays v. Buzard, 31 Mont. 74, 77 P. 423; Smith v. Denniff, 24 Mont. 20, 60 P. 398, 81 Am. St. Rep. 408, 50 L.R.A. 741.
Question of jurisdiction: 25 C.J. 426; Shea v. North-Butte Min. Co., 55 Mont. 522, 179 P. 499; United States v. Twelve Bottles of Whiskey, 201 Fed. 191; Clairmont v. United States, 225 U.S. 551, 558, 32 Sup. Ct. 787, 56 L.Ed. 1201; United States v. Sutton, 215 U.S. 291, 30 Sup. Ct. 116, 54 L.Ed. 200; Dick v. United States, 208 U.S. 340, 359, 28 Sup. Ct. 399, 52 L.Ed. 520; Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471; United States v. Lariviere, 93 U.S. 188, 23 L.Ed. 846; United States v. Powers, 16 F. Supp. 155; United States v. Hibner, 27 F.2d 909.
The lower court was correct in its holding that it had no jurisdiction to adjudicate waters appurtenant to lands in controversy within the Crow Indian Reservation.
There is no dispute in this case to the fact that the lands of respondents Spear-Morgan Livestock Company, Soldier Creek Livestock Company, Lloyd Cook and Euna P. Cook, are within the confines of the Crow Indian Reservation, that most of the holdings of John W. Lee and Barbara Lee lie within such reservation, and that the stream whose waters are sought to be adjudicated, Youngs Creek, together with its tributary, Tanner Creek, have their sources on the Crow Indian Reservation. It is also conceded that the corporate defendants assert their rights as purchasers, or as lessees, from trust patent Indians of the Crow Indian Reservation. It is also conceded that Lloyd Cook and wife assert a prior right to waters from this creek by reason of purchase of their lands from a trust patent Indian and by reason of leases held by them from trust patent Indians. It is also stipulated that John W. Lee and wife assert a prior right to the use of waters from Tanner Creek by reason of the fact that they are lessees of trust patent Indians.
The Enabling Act, granting the territory of Montana to the state of Montana, especially provides that until the title of lands lying within any treaty reservation shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States and that said Indian lands shall remain under the absolute jurisdiction and control of the United States. This reservation of jurisdiction applies not only to the lands to which title has not been extinguished but to the waters and streams having their sources within the confines of such reservation. So long as the Government is administering the affairs of the Indians, it has the right to determine, as an administrative question, the quantity of water required and to take the same where and when it may be necessary, and the rights of any others to appropriate such water are subject to the paramount right of the government of the United States. ( United States v. Conrad Investment Co., 156 Fed. 123, 125.) It is unnecessary for the government to appropriate such waters, for it owns them already. All that it is necessary for the government to do is to take such waters and use them. ( Story v. Woolverton, 31 Mont. 346, 78 P. 589.)
The waters of a stream on an Indian reservation are not subject to appropriation by the citizens and inhabitants of Montana until title by the United States to such lands is relinquished. ( Winters v. United States, 207 U.S. 564, 28 Sup. Ct. 207, 52 L.Ed. 340.) Where the United States has not specifically granted to the state any right to the waters of the streams within an Indian reservation, granted by treaty before the state was admitted into the Union, the government has the exclusive right to the use of such waters for the benefit of the Indians of the reservation. ( United States v. Parkins, 18 F.2d 642.)
The lower court erred in its adjudication of the water rights of John W. Lee and Barbara Lee on lands outside the Crow Indian Reservation. The undisputed testimony in this case is to the effect that Tanner Creek is a flood water channel, that it has been such for a great number of years, and that respondents John W. Lee and Barbara Lee are the only persons in this case having a water appropriation on Tanner Creek. Plaintiff claimed the prior rights to Tanner Creek on the theory that Tanner Creek was a tributary of Youngs Creek. Neither the plaintiff nor any other party to this litigation has shown, by any satisfactory evidence, that Tanner Creek is a tributary of Youngs Creek. A "tributary" is defined to be a watercourse which regularly contributes water in some appreciable amount to the flow of a main stream, and that is a question of fact to be determined as other facts and circumstances of the case. Whether or not a ravine, known as a dry stream, is a tributary of a main stream is a question of fact. ( Wilson v. Collins, 45 Colo. 412, 102 P. 20; Kinney on Irrigation and Water Rights, 2d ed., p. 507.) The evidence in this case is that the only water in Tanner Creek is on respondent Lee's holdings, with the exception of about four springs above him. That there is water standing in the bed of this stream for about 150 feet, but it does not run, and that this is the extent of the water in Tanner Creek outside of the spring of the year. A watercourse or tributary does not include gulleys or ravines in lands in which mere surface water from rains or melting snows at regular periods is discharged through them from a higher to a lower level, and which at other times are destitute of water. (Kinney on Irrigation and Water Rights, 2d ed., p. 509; Sanguinetti v. Pock, 136 Cal. 466, 69 P. 98, 89 Am. St. Rep. 169; Los Angeles Cemetery Assn. v. Los Angeles, 103 Cal. 461, 37 P. 375; The Chicago K. W.R. Co. v. Morrow, 42 Kan. 339, 22 P. 413; Simmons v. Winters, 21 Or. 35, 27 P. 7, 28 Am. St. Rep. 727.)
The right to impound and appropriate flood waters is guaranteed by statute (sec. 7093, Rev. Codes) and is encouraged by law where it does not substantially injure the existing rights of riparian owners. ( San Joaquin etc. Co. v. Fresno etc. Co., 158 Cal. 626, 112 P. 182, 35 L.R.A. (n.s.) 832.) No showing is made by the plaintiff, or anyone else in this case, that the impounding or taking of any flood waters by John W. Lee or Barbara Lee had, at the time of the taking thereof, interfered with their rights, and, under the testimony, such other parties in this case cannot be classed as riparian owners.
All of the waters of Young's Creek and its tributaries were reserved at the time of the Crow Treaty of May 7, 1868, for the irrigation of lands irrigable thereunder; each acre of land susceptible of irrigation from Young's Creek and its tributaries under the Powers decision ( United States v. Powers, 94 Fed. 2d 783) is entitled to its pro rata share of the waters of these streams; none of the waters of that creek and its tributaries are subject to appropriation under state law or otherwise; no legal right can be acquired under state law by any appropriator of water on the reservation; the control of these waters has been placed by the Congress of the United States in the Secretary of the Interior subject only to the limitations imposed upon his discretion by the recent Powers decision.
The control of the usufruct of the waters of Young's Creek and its tributaries is in the United States which would be an indispensable party to any action in adjudication. The Secretary of the Interior is, as heretofore set out, the administrative agent of the United States to administer such waters. The state court has no jurisdiction over property in possession or control of the United States. No state court can gain jurisdiction of federal property, enterprises or activities. It is settled law that the Government of the United States is not subject to suit and that its property or property in its possession and control cannot be proceeded against without its consent, and then only in its own courts. Its consent is expressed only by a statute permitting suits against it and the courts cannot go beyond the letter of such consent where such consent has been expressed. ( Stanley v. Schwalby, 147 U.S. 508, 13 Sup. Ct. 418, 37 L.Ed. 259; United States v. Turner, 47 F.2d 86; Gherwal v. United States, 46 F.2d 998; Louisiana v. McAdoo, 234 U.S. 627, 34 Sup. Ct. 938, 58 L.Ed. 1506.) It is the duty of this court to see that neither it nor any of its courts of inferior jurisdiction interfere with operations of the United States in its administration of property it owns or controls. Section 3 of Article IV of the Constitution of the United States, quoted below, places the control of the territory and other property of the United States in the hands of Congress: "The Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular State."
Whether the waters of Young's Creek were by the Treaty of May 7, 1868, reserved by the United States or the Crow Tribe or nation of Indians is immaterial. There can be no doubt that they were reserved for beneficial use upon the lands of the reservation and that they were under the absolute jurisdiction of the Congress of the United States. This was recognized clearly in the Montana Enabling Act of Congress wherein it was said: "Second, that the people inhabiting said proposed states do agree and declare that they forever disclaim all right and title to * * * all lands lying within said limits owned or held by an Indian or Indian tribe; and that until the title thereto shall be extinguished by the United States the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States * * *." The term "lands" would naturally include waters. ( North Side Canal Co. v. Twin Falls Canal Co., 12 F.2d 311, 314.)
This action was brought in the district court of Big Horn county to adjudicate the rights of water users from Young's Creek and its tributaries. This creek and its tributaries rise in the Crow Indian Reservation, flowing from its source to and across the exterior boundaries of the reservation. Some of the water users who are parties to this action own lands without the reservation on which they have used waters diverted from Young's Creek when available. Other parties own lands in fee simple and lease other lands within the reservation; these lands are owned by allottees under trust patents.
The trial court held that it was without its jurisdiction to adjudicate the waters of this stream within the reservation, and made no attempt to adjudicate the rights of water users whose lands were within the reservation, but it did adjudicate the rights of those users whose lands are without the reservation. The findings, conclusions and decree were in accord with these views. The appeal is from the judgment.
It is contended that the court erred in finding that it was without jurisdiction to adjudicate with reference to the rights of the water users on the Crow Indian Reservation.
The Crow Indian Reservation was established by treaty between [1] the United States and the Crow Indians, dated May 7, 1868 (15 Stat. 649). There was in this treaty no express reservation of waters for irrigation or other purposes; there was, however, an implied reservation of these waters for irrigation purposes. ( Winters v. United States, 207 U.S. 564, 28 Sup. Ct. 207, 52 L.Ed. 340; United States v. Powers (9th Cir.), 94 F.2d 783.) The federal government, having reserved these waters on the reservation, was the owner of them and it was unnecessary for it to make an appropriation of these waters. ( Story v. Woolverton, 31 Mont. 346, 78 P. 589.) These waters were reserved by the United States for the use of the Crow Indians, and, being owned by it, were not the subject of further appropriation by others.
The United States may not be sued, either at law or in equity, [2] without its consent, and whoever institutes such proceedings must present his case within the authority of some Act of Congress. ( United States v. Clarke, 8 Pet. 436, 11 U.S. 436, 8 L.Ed. 1001; Stanley v. Schwalby, 147 U.S. 508, 13 Sup. Ct. 418, 37 L.Ed. 259; State of Louisiana v. McAdoo, 234 U.S. 627, 34 Sup. Ct. 938, 58 L.Ed. 1506.) The same exemption from judicial process extends to the property of the United States. ( Stanley v. Schwalby, supra.)
Here the United States was not named as a party to the record; [3] but the question whether it is in legal effect a party to a controversy is not always determined by the fact that it is not named as a party on the record, but by the effect of the judgment or decree which can be rendered in the proceeding. ( State of Louisiana v. McAdoo, supra.)
It was sought in this action to adjudicate the rights of [4] lessees of Indian allotments to use the water diverted from Young's Creek upon such lands within the reservation. As to these allotments held by allottees under trust patents, the right to use the water appurtenant to these lands is the property of the United States, and, hence, the state court was without jurisdiction to enter a decree affecting such rights.
As to other lands within the reservation, one or more of the [5] defendants own some of their lands in fee. These lands were originally allotment lands but to which fee patents have been issued and then the lands were conveyed to persons other than Indians, who, in turn, conveyed to the defendants in fee.
Section 381, Title 25, U.S.C.A., provides: "In cases where the use of water for irrigation is necessary to render the lands within any Indian reservation available for agricultural purposes, the Secretary of the Interior is authorized to prescribe such rules and regulations as he may deem necessary to secure a just and equal distribution thereof among the Indians residing upon any such reservation; and no other appropriation or grant of water by any riparian proprietor shall be authorized or permitted to the damage of any other riparian proprietor. (Feb. 8, 1887, chap. 119, sec. 7, 24 Stat. 390.)" The purpose of this statute is to provide for the distribution of the right to use the water to the individual Indians. ( United States v. Powers (D.C.), 16 F. Supp. 155; Id. (9th Cir.), 94 F.2d 783.) The right to use the water prior to a distribution of it by the Secretary of the Interior may be said to be inchoate in the sense that the precise amount or extent of the right assigned to an individual allottee would be undetermined, but the right is vested in so far as the existence of the right to use the water in the allottee is concerned. The right is appurtenant to the land upon which it is to be used by the allottee. When the allottee became seized of fee simple title, after the removal of the restrictions of the trust patent, then a conveyance of the land, in the absence of a contrary intention, would operate to convey the right to use the water as an appurtenance. ( United States v. Powers, supra.)
The clear intent of section 381 is to result in a prorating of the waters of a stream among the riparian owners. The title to the right to use the water of Young's Creek as to some of the riparian lands is in the United States. In order to determine the extent of each right it would require the determination of the amount and extent of every other right on the stream within the reservation. Therefore, of necessity, in order to make an adjudication of any right on the stream within the reservation, the United States would be an indispensable party to the proceeding. We have demonstrated that the United States could not be made a party to this action for lack of jurisdiction; hence the trial court properly held that it was without jurisdiction to adjudicate any of the water rights on the Crow Indian Reservation.
As we have noticed, the trial court did adjudicate the rights of certain water users whose lands lie without the reservation and who diverted waters from Young's Creek, if any flowed in it, after its course is without the reservation.
John A. Milne, who was the predecessor in interest of these [6-8] appellants, filed his verified notice of appropriation on November 28, 1894, in the office of the county clerk and recorder of the proper county. It was subscribed and sworn to on November 23, 1894, and recited that he had posted a notice conforming with the statute, section 7100, Revised Codes, at his proposed point of diversion on November 20, 1894. The recorded notice conforms to the provisions of section 7100, and it was filed within the time provided by that section. This record, when duly made, is prima facie evidence of its contents. (Sec. 7104; Musselshell Valley Farming Livestock Co. v. Cooley, 86 Mont. 276, 283 P. 213.) The evidence is all to the effect that within the statutory time, late in the fall of 1894, the claimant commenced the construction of his ditch. Construction operations were soon suspended owing to freezing weather. The ditch was constructed during the next year, and according to the testimony of some witnesses, irrigation was not commenced with water diverted through this ditch until in the spring of 1896. The ditch was approximately a mile and a half in length. The court found that the predecessor in interest of these appellants, by Findings 6 and 7, made an appropriation of water by the construction of a ditch as of May 15, 1896.
The appellants contend that the court found an appropriation of water as of the date of its first use, whereas it should have found an appropriation as of the date of the posting of the notice. In Bailey v. Tintinger, 45 Mont. 154, 172, 122 P. 575, this court said: "In each of these decisions there is a very clear recognition of two distinct methods of appropriating water since the enactment of the statute upon the subject, as we have outlined above. We are satisfied that the statutory method of making an appropriation is entirely distinct from the method which may be pursued under the rules and customs of the early settlers; and, furthermore, that the statute provides for all the steps necessary to be taken by one who follows them, to secure a completed appropriation. Those steps are: (1) Posting notice. (2) Filing notice with the county clerk and recorder. (Sec. 4847.) (3) Commencing work within forty days after posting notice. (4) Prosecuting such work with reasonable diligence. And (5) actual completion of the work. (Sec. 4848.) These are all the requirements of the Code, and by what authority shall any additional exaction be made? `The Code establishes the law of this state respecting the subjects to which it relates.' (Sec. 6214.) Our conclusion is in entire harmony with the theory of appropriation as shown by the history of its origin, growth, and purpose; and if our conclusion is not correct, then there is not any such thing as an appropriation of water under or by virtue of the statute. Either the statute provides a complete mode of acquiring the right to use water by appropriation, or it does not prescribe any at all. * * * In proceeding under the rules and customs of the early settlers, whether before or since the enactment of the statute, the intending appropriator must take actual possession of the water; but from one who proceeds under the statute, actual use of the water cannot be exacted as a prerequisite to a completed appropriation. The statute does not require it, but, on the contrary, makes provision, compliance with which is the equivalent of actual possession."
In order to perfect a statutory appropriation of water, the claimant must construct his ditch through which his water is to be diverted with reasonable diligence. (Sec. 7101, Rev. Codes.) While there is some evidence tending to show that the appropriator did not work continuously on the construction of his ditch during the year 1895, in view of the length and size of the ditch, the evidence did not warrant an implied finding to the effect that he did not proceed with reasonable diligence. Without such implied finding, the decree cannot stand with reference to the rights of appellants. The trial court should have found that the essential elements of a statutory appropriation existed, and awarded appellants rights as of the date of the posting of the notice of appropriation — November 20, 1894.
The defendant Lee contends that the court was in error in [9] failing to find, and decree in his favor, a right out of Tanner Creek to be a prior right to the other rights adjudicated. The court found that Tanner Creek has but little water flowing in it; that most of its flow is flood water and that it is a tributary of Young's Creek. Tanner Creek, where there is sufficient water flowing in it, flows into Young's Creek. According to the testimony of all witnesses, it is only in time of flood that any water from Tanner Creek flows into Young's Creek, although some water flows in it near the residence of defendant; this, however, in the absence of flood, does not reach the confluence of the two streams. This evidence did not justify the court in finding that Tanner Creek is a tributary of Young's Creek. ( Wills v. Morris, 100 Mont. 504, 50 P.2d 858.)
The cause is remanded to the district court of Big Horn county with directions to modify its findings, conclusions and decree in accordance with the views herein expressed, and when the decree is so modified, the judgment will stand affirmed. All parties to this appeal will pay their own costs in this court.
ASSOCIATE JUSTICES STEWART, MORRIS and ANGSTMAN concur.
MR. CHIEF JUSTICE SANDS, absent on account of illness, takes no part in the foregoing decision.