Opinion
No. 6783.
July 27, 1933. As Amended on Denial of Rehearing September 6, 1933.
Appeal from the United States District Court for the District of Montana; George M. Bourquin, Judge.
Before WILBUR, Circuit Judge, and JAMES and NORCROSS, District Judges.
The decree appealed from in this case in character is similar to the decrees considered in cases No. 6785 ( 66 F.2d 999) and No. 6782 (66 F.2d 1003). Appellee is the owner of 40 acres of land within the Irrigation Project and claims exemption from project construction, maintenance and operation costs because her said land acquired from an Indian allottee was subject to irrigation from waters diverted from Crow Creek within the Indian Reservation prior to the inception of such project.
The findings are silent on the fact whether or not the particular tract of land in question upon this appeal was ever irrigated prior to the inception of the Irrigation Project. The decree provides that appellee "is entitled to * * * water to irrigate thirty-five acres of her land." In so far as there is any evidence upon the subject it is to the effect that this particular 40 acres had never been so irrigated.
The decree is reversed, and case remanded to the District Court, with directions to dismiss the same for want of necessary party or parties, unless the plaintiff within a reasonable time amends her complaint to bring in such necessary party or parties, and to take further proceedings not inconsistent with the views expressed in the opinion of this court.