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In Moyer v. Preston, supra, this language was used: “To constitute an appropriation there must exist, not only an intent to take the water, but that attempt must be accompanied or followed by some open physical demonstration, and there must ultimately be an application to some beneficial use."
Again, in construing the priority between two claimants of water, neither of whom had complied with the statute, it was said:
"The work of construction was prosecuted with diligence until completion, followed by an immediate application of the water to beneficial uses, which application had been continued."
In Farm Investment Co. v. Carpenter (Wyo.) 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918, the constitutional provision above quoted was construed as follows:
"The constitutional declaration was not intended to interfere with previously accrued rights to use the public waters of the state, and it does not conflict with such rights. It was, however, by all the constitutional expressions undoubtedly intended that such rights and all appropriations should be reg. ulated upon the basic principles therein enunciated. That the constitutional provision did not impair rights already accrued is apparent, not only from the accompanying provisions, but from the nature of such rights. * The appropriation is made in the first place upon the basis of public ownership of the water, and is protected instead of impaired by the constitutional declaration."
The conclusion must be that complainant is an appropriator, fully invested with all the rights attaching to that interest in property.
(b) It is objected that the amount in controversy does not exceed the sum or value of $2,000, exclusive of interest and costs. The only testimony upon the subject shows that the water right of the intervener, Howell, is worth $25 per acre, and that of complainant a like amount. It is clearly shown, and the court must know, that in an arici country, where irrigation is required for the raising of crops, the land is worthless without it. The Supreme Court has held that the matter in dispute is that upon which the jurisdiction depends. Elgin v. Marshall, 106 U. S. 578, 1 Sup. Ct. 484, 27 L. Ed. 249; Bruce v. Manchester & Keene R. R., 117 U. S. 514, 6 Sup. Ct. 849, 29 L. Ed. 990; Stinson v. Dousman, 20 How. 461, 15 L. Ed. 966. The water right is the only thing in dispute. It is neither the land, nor in this suit can it be the damages, for it is not shown that the tortious acts of the defendants were joint. The jurisdiction in this regard, therefore, rests upon the value of the water right, and, resting upon that, clearly the amount in controversy is in excess of that required to sustain it. Complainant will be given leave to amend his bill to conform to the proofs upon this view.
(c) The jurisdiction is challenged because Sage creek is an interstate stream, which it is argued precludes an appropriator in Wyoming from the assertion of his rights in Montana; that the state of Montana having recognized the right to appropriate the waters within its borders, it becomes a matter of state concern, which would put upon Wyoming the necessity, in the exercise of its sovereignty, of instituting a suit in the Supreme Court of the United States against the state of
Montana, and that a private citizen of one state cannot enter the courts of another to assert that which is exclusively an exercise of the sovereign power of the state; that the defendants are protected by the laws of Montana, which authorize appropriations to be made within its territorial limits; and that it is not competent for the courts to interfere with the sovereignty of one state by permitting a citizen of another state to collaterally assail that which it has recognized by its laws, and will uphold as a part of its political jurisdiction.
Defendants' counsel have illustrated their contention in this way: A riparian owner on the Mississippi river might seek to enjoin the diversion of the waters of Sage creek in Montana because they eventually reach the Missouri river, and finally through that river flow into the Mississippi. This argument may be classed under the head of reductio ad absurdum, which sometimes is very effective in illustrating results which may flow from the doing of a given thing. It will be time enough to solve that problem should it ever be propounded.
The contention ignores the right to appropriate water which is recognized by both states. It assumes a condition which does not in fact exist, namely, that the state of Montana has undertaken to authorize the appropriation of water as against a prior appropriator in another state. It has authorized by its laws the taking of un:appropriated waters. Indeed, it could not authorize the taking of any other without doing violence to well-known principles; and the rule would be the same whether the statutes of that state expressly limited the right to take unappropriated waters or were silent upon the subject; because the doctrine of appropriation, as construed in Montana and elsewhere, is well understood to apply to water the right to the use of which has not already vested in others. In both states the custom of appropriation had been fully recognized before the complainant and intervener began the use of the water claimed by them, and it had the sauction of the statutes of both while they were territories, and subsequently received express recognition in the Constitution of Montana (article 3, § 15), and in the Constitution of Wyoming, as shown elsewhere in this opinion. It also had the sanction of the general government, the owner of both the land and the water, and the artificial line drawn between the two territories, created by Congress, could in no way debar one from the exercise of a right so universally acknowledged. A natural stream flowing in Wyoming was as much upon the public lands as the same stream flowing in Montana. At the time of the adoption of the constitutions of those states the rights of the complainant and intervener had vested. For the courts, in the absence of any express and unqualified assertion either in the Constitution or statutes of Montana, or any claim on the part of the state through its proper officers, through whom the contention could only be made, if it could be made at all, to deny the existence of an appropriation made in Wyoming, would be to violate that which has been accepted without dissent, and to disturb vested rights which have the approval of general acquiescence, at the behest of a private suitor, who seeks to invoke the power of the state to do that which it does not even contend for. It would overlook the well-known comity existing between these states, both of
which recognize the same doctrine as applied to the use of water, in so far as it relates to an appropriation of the same, as well as to ignore a public policy well recognized and existing, which has its approval in custom of equal efficacy to the right to appropriate at all—a right which inheres in, and is a part of, the custom to which appropriations of water must be referred.
In the early stages of this suit Judge Knowles refused to sustain the views thus presented by the defendants. Whether the ruling made is the law of this case does not become material, because the reasons which actuated him in his decision are not only based upon sound principles, but are sustainable upon authority. No case has been cited where the distinction sought to be drawn has prevailed in the courts, but, on the contrary, apparently, wherever the question has arisen the holding has been the other way. Howell v. Johnson (C. C.) 89 Fed. 556; Morris v. Bean (C. C.) 123 Fed. 618; Hoge et al. v. Eaton et al. (C. C.) 135 Fed. 411; Anderson et al. v. Bassman et al. (C. C.) 140 Fed. 14; Willey v. Decker (Wyo.) 73 Pac. 210, 100 Am. St. Rep. 939.
The court therefore has jurisdiction.
2. Riparian rights. The complainant does not and cannot claim as a riparian owner. The intervener has not disclosed such proprietorship. Under the laws of Wyoming, by which their rights must be adjudged, that principle is not recognized. The defendants do claim as such. They base their claim upon the assumption that because the land now owned by them was at the inception of the rights of their adversaries embraced within the limits of the Crow Indian Reservation, that the taking of water by them never conferred the right to its use against the riparian rights of the defendants, acquired, they contend, as the successors in interest to the Crow Indians.
It is difficult to understand how this contention, if upheld, would aid them. The Indians made no appropriations. If all that the defendants contend for in this regard should be sustained, it would be of small value, because the right of a riparian owner to use water for irrigation is limited to a reasonable use, and that reasonable use will not permit one owner to deprive his co-owner of the same privilege he exercises himself. Lux v. Haggin, 69 Cal. 255–390, 10 Pac. 674; Long on Irrigation, $ 9–18–20; Union Milling & Min. Co. v. Ferris, 2 Sawy. 176, Fed. Cas. No. 14,371; Union Milling & Min. Co. v. Dangberg, 2 Sawy. 450, Fed. Cas. No. 14,370; Gould v. Eaton, 117 Cal. 539, 49 Pac. 577, 38 L. R. A. 181.
While the defendants have pleaded their riparian ownership, they have waged the contest as appropriators. Their testimony was directed exclusively to that claim, and there is no proof as to what would constitute a reasonable use by them, considering the rights of those whose lands are situate in Wyoming. If a decree should declare that they are entitled to a reasonable use of the water flowing through their lands, the rights of the parties would be left in such a state of uncertainty as to render it void. Morris v. Bean (C. C.) 123 Fed. 618. When the right of the Indians was extinguished, and the land was thrown open to settlement, it became public, and, assenting for the
sake of argument to the theory of the defendants, all that was in the way of the validity of the prior appropriations had been removed, anc: the appropriators in Wyoming were in point of time ahead of any claim which the defendants could possibly make, because their appropriations attached eo instanti. Beecher v. Wetherby, 95 U. S. 525, 24 L. Ed. 440; Johnson v. McIntosh, 8 Wheat. 543, 5 L. Ed. 681.
It is no answer to say that, because the doctrine of riparian ownership does not exist in Wyoming, that therefore, under claim of that right in Montana, the defendants can deprive the complainant and intervener of the use of the water naturally flowing in the stream. While they cannot claim as riparian owners, yet they are entitled to the use of the water and the assertion of riparian ownership in Montana cannot be allowed to prevail as against what are held to be appropriations in Wyoming, when those appropriations are prior in time to the beneficial use of the water by the defendants. It is the water that the appropriator in Wyoming desires, and it is immaterial whether he gets it by virtue of riparian ownership or appropriation.
But this is perhaps drifting into refinements. There are more substantial reasons for denying the claims of the defendants. The Indians were not riparian owners. Their right was that of occupancy only, while the fee was in the United States.
In Beecher v. Wetherby, supra, the Supreme Court, in referring to the nature of the title of the Menomonee Indians, said:
“It is true that, for many years before Wisconsin became a state, that tribe occupied various portions of her territory, and roamed over nearly the whole of it. In 1825 the United States undertook to settle by treaty the boundaries of lands claimed by different tribes of Indians, as between themselves, and agreed to recognize the boundaries thus established; the tribes acknowledging the general controlling power of the United States, and disclaiming all dependence upon and connection with any other power. The land thus recognized as belonging to the Menomonee tribe embraced the section in controversy in this case. Subsequently, in 1831, the same boundaries were again recognized. But the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose. The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians; that occupancy could only be interfered with or determined by the United States.
The right of the United States to dispose of the fee of lands occupied by them has always been recognized by this court from the foundation of the government."
So it was said in referring to the same subject, in Johnson v. McIntosh, 8 Wheat. 543, 5 L. Ed. 681:
“The right of the Indians to their occupancy is as sacred as that of the United States to the fee, but it is only a right of occupancy. The possession, when abandoned by the Indians, attaches itself to the fee without further grant."
In case of conflict between a treaty with the Indians and a subsequent act of Congress the latter must prevail. United States v. Old Settlers, 148 U. S. 427, 13 Sup. Ct. 650, 37 L. Ed. 509; Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295; Cherokee Nation v. Hitchcock, 187 U. S. 295, 23 Sup. Ct. 115, 47 L. Ed. 183; Lone Wolf v. Hitchcock, 187 U. S. 564, 23 Sup. Ct.
216, 47 L. Ed. 299. This doctrine is inconsistent with the theory of the defendants. It would be tedious to refer to the numerous acts of Congress which have dealt with the rights of the Indians, together with the many treaties which have been made from time to time. It is sufficient to observe that legislation upon the subject has with great uniformity followed the rule so often reiterated by the Supreme Court in relation to the nature of Indian titles, which recognizes in them the right of occupancy only, subject to the paramount authority and title of the United States. Under Act Feb. 8, 1887, c. 119 (2+ Stat. 388), which provides for allotments, not only does Congress adhere to the word "use” with great care as applied to the rights of the Indians, but the act provides for the issuance of patents, which would be quite unnecessary if the fee were already in the Indians. Applying the rule to this case, when the right of occupancy ceased, the fee always having been in the United States, the lands became public by being thrown open to settlement, as the term was defined in Newhall v. Sanger, 92 U. S. 761, 23 L. Ed. 769. But the land was always a part of the public domain. The rights of the defendants attached as settlers after the lands were made subject to settlement. They cannot antedate settlements made by them. At that time, prior appropriations had been made by the complainant and intervener, and defendants took their riparian rights subject to and charged with those appropriations. Benton v. Johncox, 17 Wash. 277, 49 Pac. 495, 39 L. R. A. 107, 61 Am. St. Rep. 912; Lux v. Haggin, 69 Cal. 255-390, 10 Pac. 674; Thorpe v. Tenem Ditch Co., 1 Wash. St. 566, 20 Pac. 588; Vansickle v. Haines, 7 Nev. 249.
3. Statute of limitations. The statute of limitations is applied by analogy in courts of equity to that relating to the possession of real estate. It never runs upon a scrambling possession. It presupposes adverse, exclusive, and uninterrupted possession under a claim of right. The claim must be hostile to that of the person against whom it is asserted. The aid of the statute has occasionally been invoked with success in cases of this character, but not under conditions similar to those of this case.
The defendants made their first diversions of water in 1893. A few of them have brought themselves barely within the statutory period. It often happens that persons who are takers of water from a stream gradually enlarge their diversions until they begin to deprive the first appropriators of the amount to which they are entitled. The taking is so gradual, and the enlargement of the use so imperceptible, that it is impossible to fix a time when it begins to be adverse. This is not an unusual situation, and it is presented by the testimony here. The quantity of water in this stream varies greatly from spring floods to low water in the fall. Most small streams are subject to this variation. The flow of water varies also with the seasons, depending largely upon the amount of snowfall or rain in the mountains. It is manifestly impracticable to apply the statute of limitations to such a state of affairs, and in this case particularly it could not apply, because the defendants have not had the uninterrupted use of the water for the statutory period. It is shown that they at times turned the water down, upon