# Uintah & White River Bands of Ute Indians v. United States

> United States Court of Claims · June 5, 1957 · 152 F. Supp. 953

URL: https://www.frixlaw.com/law-library/cases/8591713

## Case

- **Full name:** THE UINTAH AND WHITE RIVER BANDS OF UTE INDIANS v. United States
- **Court:** United States Court of Claims
- **Decided:** June 5, 1957
- **Citations:** 152 F. Supp. 953; 139 Ct. Cl. 1; 1957 U.S. Ct. Cl. LEXIS 89
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Madden
- **Judges:** Jones, Laramore, Litteeton, Madden, Whitaker
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8591713

## Opinion text

Madden, Judge,
delivered the opinion of the court:
This is a suit against the United States by the Uintah and White River Bands of Ute Indians. They assert, and the Government denies, that this court has jurisdiction of the case under the special Ute Jurisdictional Act of June 28, 1938, as amended. 1 By section 1 of that Act this court is authorized to “hear, determine, and render final judgment on all legal and equitable claims of whatsoever nature which the Ute Indians or any tribe or band or any constituent band thereof, may have against the United States, including, * * * claims arising under or growing out of any treaty or agreement of the United States, law of Congress, executive order, or by reason of any land taken from them, without compensation.”
The plaintiffs claim just compensation for 973,777 acres of the former Uintah Indian Reservation in Utah, taken by *3 the United States on July 14, 1905, by incorporation into the Uintah National Forest. The questions now ready for decision are whether the plaintiffs were the owners of the land at the time in question; if they were, what was the value of the land at the time it was taken; and are they entitled to interest on that value.
THE PLAINTTFP’S TITLE
By an Executive Order of October 3, 1861, 1 Kappler 900, President Lincoln approved a recommendation of the Secretary of the Interior that “the Uintah Valley, in the Territory of Utah, be set apart and reserved for the use and occupancy of Indian Tribes”. The lands involved in this, case lie within the area described in the Executive Order.
The Act of May 5, 1864, 13 Stat. 63 , authorized and required the Superintendent of Indian Affairs to bring together and settle in the Uintah Valley as many of the Indians of Utah Territory as might be found practicable. It said that the Uintah Valley
is hereby set apart for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said territory as may be induced to inhabit. the same.
Pursuant to an Act of February 23, 1865, 13 Stat. 432 , a treaty was negotiated with numerous Indian tribes in Utah providing for their surrender of all their rights in land in that territory which was suitable for agricultural and mineral purposes, but reserving to the Indians for their exclusive use and occupation “the entire valley of the Uintah River within Utah Territory”.
Although the treaty just described was never ratified* various individual Indians and groups of Utah Indians, from time to time after 1865, moved into the Uintah Valley. An Indian Agency was established there, the area became known as the Uintah Indian Reservation, and the Indians so migrating into the reservation, as well as those already there before the reservation was established, and their descendants, became and have since been known as the Uintah Indians or Uintah Ute Indians, one of the plaintiffs herein.
In 1868 a treaty was made with seven bands of Ute In *4 dians, sometimes thereafter known as “The Confederated Bands of Ute Indians”. This treaty was later duly ratified. It set apart a large reservation, wholly within the Territory of Colorado, for the Indians named in the treaty and for such other friendly Indians as they might be willing to admit among them. The Indians relinquished all claims and rights to land not included within the reservation.
In an agreement embodied in the Act of June 15, 1880, 21 Stat. 199 , with the Confederated Bands of Ute Indians in Colorado, the Indians ceded the then remaining portions of their Colorado reservation and the various bands agreed to settle in other places designated in the agreement. Of interest in this case were the provisions that the White River Utes agreed to remove to the Uintah Reservation in Utah and the Uncompahgre Utes agreed to remove to an area on the Grand River, in Colorado, or to other lands in that vicinity and in Utah. The White River Utes then moved to the Uintah Reservation in Utah, and their descendants have continued to live on that reservation. This band and the Uintah band are the plaintiffs in this case. The Uncom-pahgre Utes were settled upon a reservation in Utah which was not within the area of the Uintah Reservation.
Thus far, on the question of title, we have the 1864 Act setting apart the Uintah Reservation
for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said territory (Utah) as may be induced to inhabit the same.
We have Indians who were already in the area and others of different Utah bands moving into the area and settling there, apparently losing their identity and becoming known as “Uintah Ute” Indians. It could well be urged that these Indians, having fulfilled the conditions of the statute, became the grantees, or at least “recognizees” under the statute. It is as if one made a deed “to the first of my grandsons who shall reach the age of 25”.
The Indian Claims Commission, on February 21, 1951, in the case of The Uintah Ute Indians of Utah v. United States, Docket No. 45, held that the United States is liable to the Uintah Ute Indians for the undivided share of the *5 reservation which the United States turned over to the White River Utes pursuant to the 1880 statute.
The Act of May 24, 1888, 25 Stat. 157 , provided that a designated portion of the Uintah Yalley Reservation should be restored to the public domain and sold if three-fourths of the adult male Indians residing on the reservation consented. The statute provided:
That all moneys arising from the sales of this land shall belong to said Indians and be paid into the Treasury of the United States and held or added to any trust funds of said tribes now there.
In the administration of this Act, the consent of the Uintah and the White River Indians was obtained, the lands were sold, and the receipts were credited to these two bands of Indians. In 1902, Congress appropriated $10,000 more to these Indians for other lands detached from the reservation pursuant to the 1888 statute.
Bills were introduced in Congress in 1898 proposing that the Uncompahgre Indians be allotted lands in the Uintah Reservation. The Secretary of the Interior and the Commissioner of Indians Affairs, being asked to comment on the bills, opposed the bills on the ground that the Indians residing on the Uintah Reservation owned the land, and that it should not be taken from them except by negotiation and purchase. The bills were not passed.
In finding 14 we recite administrative actions taken in 1892, 1897, and 1898 on the express assumption that the Uintah and White River Utes owned the land in the Uintah Reservation. Pursuant to statutes cited in our findings 15, 16, and 17, some Uncompahgre Indians were given allotments in severalty in the Uintah Reservation, and the Uintah and White River Utes were paid $60,064.48 for the lands so allotted.
By the Act of May 27,1902, 32 Stat. 245,268 , the Secretary of the Interior was directed, if a majority of the adult male Indians of the Uintah and White River bands consented, to make individual allotments to the Indians and then restore all of the unallotted lands of the Uintah Reservation to the public domain, to be sold under the homestead law for $1.25 an acre, the proceeds to be used for the benefit of said *6 Indians. The allotments were made, and sales of the lands restored to the public domain ultimately produced proceeds of $1,184,996.33 which were placed in an account headed “Proceeds of Unitah and White River Ute Lands”.
Our finding 19 shows that later in 1902, and before the allotments had been made and the unallotted lands restored to the public domain, Congress directed the Secretary of the Interior to set apart for the Indians a common grazing area in the reservation. The statute seems to have reduced the allotments of the Uncompahgre Indians, but gave them rights in the common grazing area.
By the Act of March 3,1905, 33 Stat. 1048,1069 -70, Congress, among other things, authorized the President to set apart and reserve, as an addition to the Uintah Forest Reserve, such portions of the lands within the Uintah Indian Reservation as he considered necessary. The President, on July 14,1905, 34 Stat. (Part 3) 3116, set aside 1,010,000 acres of land under this authority. This land was, of course, a part of the land which, under the Act of May 27, 1902, was to have been restored to the public domain, sold, and the proceeds used for the benefit of the Uintah and White River Indians. No provision was made for paying the Indians for the 1,010,000 acres of land, and they are now suing for its value.
In this opinion we have abbreviated the history of the dealings of Congress and the Executive with these Indians in relation to this land. A much fuller history appears in our findings. It plainly appears from it, we think, that Congress in its statutes, and the Executive in interpreting those statutes, repeatedly recognized the plaintiff bands as the owners of the Uintah Reservation. They were the ones whose consent had to be obtained, when transactions relating to the land were contemplated. They were the ones to whom the money was to be paid and was paid, when reservation land was disposed of to third persons.
Between 1924 and 1929 several unsuccessful attempts were made to obtain passage of special jurisdictional acts to permit the plaintiff bands to sue in this court for the taking of the 1,010,000 acres of land. In 1930 a bill was introduced providing for a direct payment for the lands, at the rate of *7 $1.25 per acre. In this bill, for' the first time, the Uncom-pahgre Band of Utes was included with the Uintah and White Biver Bands. The committee report and material inserted in the Congressional Record discussed only the title of the Uintah and White River Bands. There is no explanation or mention of a reason for including the Uncompahgre in the bill.
The bill was enacted on February 13, 1931, 46 Stat. 1092 , and provided for the direct payment of $1,217,221.25 for 973,777 acres of land, which was at the rate of $1.25 per acre. The bill said that the payment was to be in full satisfaction of all claims of the Indians in relation to the 973,777 acres of land. The remainder of the land, 36,223 acres, was said to be coal land, and action on it was reserved. The appropriated money was distributed per capita to the three bands of Indians, the Uncompahgre receiving $439,466.88 of it. The coal lands are the subject of another suit now pending in this court.
THE JURISDICTIONAL ACT
The jurisdictional act, cited supra, gives the court jurisdiction to decide the plaintiffs’ claims arising “by reason of any lands taken from them without compensation.” The Government points to the payment made under the 1931 Act and says that these lands were not taken without compensation. We have no doubt that the Jurisdictional Act was intended to include these claims. The pertinent committee reports say so in express words. House Rept. No. 1028, 75th Cong., 1st sess., on HR 3162, pp. 2-3; Senate Rept. No. 1219, 75th Cong., 1st sess., pp. 2-3. And section 5 of the Jurisdictional Act itself provides that payments made by the United States upon or in satisfaction of any claim sued on under the Act should not operate as an estoppel, but only as a setoff against the claim. Our conclusion is that the court has jurisdiction of the claim.
THE VALUE OF THE LAND
The land was taken in 1905, and must be valued as of that date. The valuation of an area of land such as the one here involved, as of today, would be a task of great difficulty, *8 and the figure arrived at would be, at best, an approximation, reached by weighing a large number of elements of greater or lesser significance, and giving each the weight which it was thought to merit. In the instant case, the relevant events and elements are those of fifty years ago. Highly competent experts were presented by the parties. But they disagreed as to whether 1905 was an unusually dry season, or on the other extreme, was a year of record-breaking rainfall; whether the edible plant growth was more abundant in 1905 than now, because it had been overgrazed during World War I, or the management of the Forest Service had so improved it that it is better now than it ever was; whether in 1905, small tracts of this kind of land brought higher prices per acre than large ones, or vice versa. Thus there was disagreement, even as to relevant historical facts. There was disagreement as to conclusions to be drawn even from undisputed historical facts, such as the prices at which the railroads in the area sold their alternate sections of land. Did they sell them cheap in order to settle the country and get in cash to retire their bonds, or did they hold out for about the market price ? There was disagreement as to how far from the area in question land transactions might take place, and still be helpful in arriving at the market value of these lands. Many lay witnesses were presented by the plaintiffs, old residents who recollected, more or less accurately, events and transactions of the time in question.
Commissioner Hogenson of this court presided over the lengthy trial and has made an able and obviously careful report. He had a better opportunity than we have to acquire a realistic understanding of the problem of the value of these lands as of 1905, and we think his conclusion is substantially right. We therefore find, as he did, that the value was $1.25 per acre.
THE PAYMENT TO THE TJNCOMPAHGKES
As we have seen, the 1981 Act required the payment of a share of the money granted by that act to the Uncompahgre Indians, and $439,466.88 of the money was paid to them. They had no title or interest in the Uintah Reservation except in the allotments which were bought for them from the plaintiffs, and in the common grazing area. They had, *9 therefore, no interest in the 973,777 acres of the land placed in the Forest Reserve, for which the 1981 payment was made. The United States is entitled to no credit for the $439,466.88 which was paid to the Uncompahgre Indians. It is entitled to credit for the $777,754.37 which was paid to the plaintiffs.
INTEREST
The parties disagree as to whether our judgment should include interest upon the sum which we find to be the 1905 value of the land in question. As we have said, the plaintiffs were the owners of the land in question, with a title repeatedly recognized by Acts of Congress, and by Executive actions taken pursuant to statutes. The United States, pursuant to an Act of Congress, took possession and ownership of the land for itself, for its Forest Reserve. No plainer case of an expropriation could be stated. In that respect the case is like United States v. Creek Nation, 295 U. S. 103 , and Shoshone Tribe of Indians v. United States, 299 U. S. 476 . It was held in those cases that in the case of an expropriation of lands owned by Indian Tribes, interest from the time of the taking must be included as a part of just compensation, in order to satisfy the Fifth Amendment. The decision in United States v. Alcea Band of Tillamooks, 341 U. S. 48 , was based on the Court’s conclusion that no taking such as is contemplated by the Fifth Amendment occurred in that case.
If the plaintiffs were not, as we think they are, entitled to interest as a constitutional right, we think they would be entitled to interest under the provisions of the Jurisdictional Act. If Congress did not intend that the measure of recovery constitutionally required in expropriation cases should be applied, there was no reason for its express statement in section 6 that, if it found that the plaintiffs’ lands had been taken without compensation,
the court shall render judgment in favor of said Indians, and shall award to them, as for a taking under the power of eminent domain, compensation for all such lands * * *.
An interesting question arises as to the effect of the payment of the $777,754.37 by the United States to the plaintiffs in 1931 on the computation of interest. If it is applied to *10 reduce the principal, it would follow that no interest on that part of the principal would accrue after 1931. If it is applied on the interest accrued up to 1931, it is not enough to pay that interest, and would leave all of the principal continuing to draw interest since 1931.
The plaintiffs say that a payment not large enough to pay both interest and principal is to be applied first to interest, citing Story v. Livingston, 13 Pet. (38 U. S.) 359, 371. The Government says that this is the rule unless the debtor, when he makes his payment, stipulates that it is to be applied to principal. The authorities cited by the Government seem to relate not to the question of principal and interest, but to situations where the debtor owes the creditor more than one debt, and stipulates that his payment should, for example, be applied to a secured debt, when the creditor would prefer to apply it to an unsecured debt.
However, although there seems to be no precedent, we think that the general rule should be that the debtor may effectively direct the application of his payment. If he makes a payment stipulating that it shall be applied to principal, it would seem that the creditor would have no right to retain the payment and apply it to interest. If the interest is overdue, he may collect it by suit, but he can’t do it by self-help, by using for a purpose which he prefers, money which is put into his hands for another purpose.
If the intention of the debtor were controlling in the instant case, we have no doubt about the intention of Congress in 1931. It said that its payment was to be in full satisfaction of all claims relating to the land, and it fixed a price of $1.25 per acre for the land. It was thinking of principal, not interest.
The plaintiffs urge that the Jurisdictional Act has directed us how to apply the 1931 payment by saying, in section 5
No payment or payments which have been made by the United States upon or in satisfaction of any claim or claims in any suit brought hereunder * * * shall apply as an estoppel against any suit brought hereunder, but there shall be set off against any recovery * * * any payment made * * *.
*11 The plaintiffs say that this language directs us to compute their recovery as if no payment had been made in 1931, and then set off the 1931 payment against the result of that computation. This is a fair argument, and we are by no means certain that it is not correct. We conclude, however, that it was not meant by Congress as a specific direction as to how the computation should be made, but only as an assurance that the claims were not to be barred completely by a prior payment purportedly made in full satisfaction. We think Congress left to the Court the details of the computation, and expected us to make it in the same way that such a computation would be made in private litigation.
We do not adopt the proposal of either litigant. As to the Government’s contention as to the application of the 1931 payment, we think that in the instant situation the intention of the debtor is not controlling. The “debt” is not an obligation incurred by agreement, but one imposed by the law of the Constitution. Our duty, we think, is to apply the 1931 payment in such a way as to most nearly approach the Constitutional objective of compensation for the value at the time of taking, plus compensation, in the form of interest, for delay in paying for the value at the time of taking.
When the $777,754.37 was paid to the plaintiffs in 1931, 26 years of interest at 5% had accrued upon the 1905 value of the land. The $777,754.37 was, therefore, sufficient to pay principal (100%) plus accrued interest (130%) upon only $338,154.08 of the principal ($777,754.37-f-2.30=$338,154.08). We think it should be so applied. That means that as to that much of the principal, the payment was in full, and no further interest accrued. As to the balance of the principal, $879,067.17, no payment has ever been made, and that sum draws interest from 1905 to the date of payment.
We realize, of course, that such a formula, attempted to be patterned to fit a situation as unusual as the instant one where the Constitutional obligation has remained unfulfilled for more than fifty years, has rather rough edges. But it seems fairer to us than those proposed by the parties.
The plaintiffs are entitled to recover $879,067.17, with interest thereon, as a part of just compensation at 5% from *12 July 14, 1905 to July 14,1934, and at 4% from the latter date to the date of payment. 2 The question of the remaining offsets, if any, has not been determined, and the case will be remanded to the commissioner for further proceedings on that matter under Rule 38 (c).
It is so ordered.
LaRAmoRe, Judge; Whitaker, Judge; Litteeton, Judge; and Jones, Chief Judge, concur.
FINDINGS OF FACT
The court, having considered the evidence, the briefs and argument of counsel, and the report of Commissioner Roald A. Hogenson, makes the following findings of fact:
1. Plaintiffs, the Uintah and White Eiver Bands of Ute Indians, who timely filed this suit pursuant to a statute conferring special jurisdiction upon this court (Act of June 28, 1938, 52 Stat. 1209 , as amended), are two bands of Ute Indians, which, together with the Uncompaghre Band of Ute Indians, constitute the Ute Indian Tribe of the Uintah and Ouray Eeservation, a corporation formed under the Indian Reorganization Act of June 18, 1934, 48 Stat. 984 . The members of plaintiff bands in general reside on the Uintah and Ouray Reservation, State of Utah, as do some of the Uncompaghre Band.
In pre-white times, Indians who have since come to be known as Utes, Southern Paiutes, and Shoshones lived within the territory now included in the State of Utah.
2. By Executive Order of October 3,1861, 1 Kappler 900, the President approved a recommendation of the Secretary of the Interior that “the Uintah Valley, in the Territory of Utah, be set apart and reserved for the use and occupancy of Indian tribes.” In the absence of an authorized survey, the area “reserved to the United States and set apart as an Indian reservation” was described as “the entire valley of the Uintah River within Utah Territory, extending on both sides of said river to the crest of the first range of contiguous mountains on each side.”
*13 The lands involved in this case are within the area so described.
3. By act oí May 5,1864, 13 Stat. 63 , it was provided:
* * * That the superintendent of Indian affairs for the territory of Utah be, and he is hereby, authorized and required to collect and settle all or so many of the Indians of said territory as may be found practicable in the Uintah valley, in said territory, which is hereby set apart for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said territory as may be induced to inhabit the same.
4. By an act of February 23,1865, 13 Stat. 432 , “ * * * to extinguish the Indian Title to Lands in the Territory of Utah suitable for agricultural and mineral Purposes.”, the President was authorized and directed to enter into treaties with the various tribes of Indians of Utah Territory, providing for the surrender of their possessory right to all such lands, except such part as might be set apart for reservations. Pursuant to this act, treaties were negotiated with the “Pie-ede or Pah-Ute” Indians on September 18,1865, the “Weber Ute” on October 30,1865, 5 Kappler 698, and various groups of “Utah” Indians on June 8, 9, and 10,1865, 5 Kappler 695. None of the said treaties was ever ratified.
5. The Indian parties to the treaty negotiated on June 8, 9, and 10, 1865, commonly referred to as the Spanish Fork Treaty, were designated therein as the “* * * Utah, Yam-pah Ute, Pah-Vant, Sanpete Ute, Tim-p-nogs and Cum-nm-bah Bands of the Utah Indians occupying the lands within Utah Territory, * * The said treaty provided for the cession by said Indians of “all their possessory right of occupancy” to an area described therein, reserving a designated part thereof for their exclusive use and occupation as follows:
Art. II. There is however reserved for the exclusive use and occupation of the said tribes the following tract of lands; viz “the entire valley of the Uintah Eiver within Utah Territory extending on both sides of said river to the crest of the first range of contiguous mountains on each side” which said tract shall be, so far as is necessary, surveyed and marked out, set aside and reserved for their exclusive use and occupation nor shall any white person, unless he be in the employ of the *14 Indian authorities, be permitted to reside upon the same, without permission of the said tribe, ana of the Superintendent of Indian Affairs or United States Indian Agent. It is however understood that should the President of the United States hereafter see fit to place upon the reservation, any other friendly tribe or bands of Indians of Utah Territory, to occupy the same in common with those above mentioned, he shall be at liberty to do so.
Art. III. The said tribes and bands agree to remove to and settle upon the said reservation within one year after the ratification of this treaty, provided the means are furnished them by the United States to enable them to do so — In the meantime it shall be lawful for them to reside upon any land not in the actual claim and occupation of citizens of the United States, and upon any land claimed or occupied if with the permission of the owner.
6. From time to time after 1865, various individuals and groups of Indians residing in Utah Territory, other than those who were in Uintah Yalley at the time, moved into the area described in the Executive Order of October 8, 1861, and the unratified Spanish Fork Treaty of 1865, and set apart by the act of May 5, 1864, supra. An Indian agency was established known as the Uintah Yalley Agency, and the •area became known as the Uintah Indian Reservation or the Uintah Yalley Reservation. A substantial number of the said Indians, so located on the reservation, and their descendants have continued to live upon the reservation, have received individual allotments thereon pursuant to the act of May 27, 1902, as amended, and are now all known as Uintah or Uintah Ute Indians.
7. On March 2, 1868, a treaty was concluded (and subsequently ratified and proclaimed, 15 Stat. 619 ) between the United States and Indian parties designated therein as “the Tabequache, Muache, Capote, Weeminuche, Yampa, Grand River, and Uintah Bands of Utes,” sometimes referred to thereafter as the “Confederated Bands of Ute Indians.” Article II of the said treaty set apart a large reservation, wholly within the Territory of Colorado, for the use and occupation of the Indians therein named, and for such other friendly Indians as they might be willing to admit among *15 them. By Article III the Indians, parties thereto, relinquished all claims and rights in and to any other territory not included within the reservation. Article IV provided for the establishment of two agencies upon the reservation, “one for the Grand Biver, Yampa, and Uintah bands, on White Biver, and the other for the Tabequache, Muache, Weeminuche, and Capote Bands on the Bio de los Pinos * * The said agencies were established and Indians associated with the White Biver Agency in northwest Colorado came in time to be known as White Biver Utes or the White Biver Band of Ute Indians.
8. By an agreement approved by the act of June 15,1880, 21 Stat. 199 , with the “Confederated Bands of Ute Indians in Colorado,” it was provided that the Indians would cede the then remaining portions of the Ute reservation in Colorado. The agreement provided for stated considerations to the Indians and that reservations be established for them as follows:
The Southern Utes agree to remove to and settle upon the unoccupied agricultural lands on the La Plata Biver, in Colorado; and if there should not be a sufficiency of such lands on the La Plata Biver and in its vicinity in Colorado, then upon such other unoccupied agricultural lands as may be found on the La Plata Biver or in its vicinity in New Mexico.
The Uncompahgre Utes agree to remove to and settle upon agricultural lands on Grand Biver, near the mouth of the Gunnison Biver, in Colorado, if a sufficient quantity of agricultural land shall be found there, if not then upon such other unoccupied agricultural lands as may be found in that vicinity and in the Territory of Utah.
The White Biver Utes agree to remove to and settle upon agricultural lands on the Uintah Beservation in Utah.
9. Pursuant to the Agreement and Act of June 15, 1880, supra, the White Biver Utes were removed to the Uintah Beservation beginning about November 1881. Pursuant to the same act and subsequent legislation they were given individual allotments on the Uintah Beservation. In general, the White Biver Ute Indians so removed to the reservation, and their descendents have continued to live upon the reservation.
*16 10. Pursuant to section 2 of the act of June 15, 1880, supra, a commission reported that it had examined the land on the Grand River near the mouth of the Gunnison, and had found insufficient suitable land for the Uncom-pahgre Utes. A tract of land in the valleys of the White and Green Rivers in Utah (south and east of the Uintah Reservation) was selected by the commission and approved by the Secretary of the Interior for the settlement of the Üncompahgre Utes, who removed thereto by October 1881. The Üncompahgre Reservation in Utah was established by Executive Order of January 5, 1882, 1 Kappler 901.
11. The act of May 24, 1888, 25 Stat. 157 , provided that a designated portion of the Uintah Valley Indian Reservation should be restored to the public domain and sold upon ratification by three-fourths of the adult-male Indians residing on the reservation. The act provided further:
* * * That all moneys arising from the sales of this land shall belong to said Indians and be paid into the Treasury of the United States and held or added to any trust funds of said tribes now there.
Pursuant to this act, the required consent of the Uintah and White River Bands of Ute Indians was obtained, and the lands were sold by the United States and receipts therefrom in the amount of $22,417.93 were credited to the benefit of the Uintah and White River Bands of Ute Indians. Pursuant to the act of May 27, 1902, 32 Stat. 245 , 263, as amended by the Joint Resolution of June 19, 1902, 32 Stat. 744 , an additional $10,000 was appropriated and paid to the Uintah and White River Utes to cover claims for lands detached from the reservation pursuant to the act of May 24, 1888, supra.
12. On September 12, 1893, Mr. Rawlins of Utah introduced and-there was referred to the House Committee on Indian Affairs, H. Res. 45, 53d Congress, 1st session. This proposed joint resolution would have authorized and directed the Secretary of the Interior to release from the Uin-tah and Üncompahgre Indian Reservations in Utah and to restore to the public domain such portion or portions of either or both reservations “as are in his judgment desirable to be so released, having due regard to the interests of the *17 several Indian tribes hitherto occupying the same and to all rights secured to such Indians by any treaties or statutes.” By section 2 of the resolution it was provided:
That in case it shall appear to the Secretary of the Interior that any tribe or band of Indians have any title or proprietary interest in any body of land in their said reservations which should, in the judgment of the said Secretary, be restored to the public domain, it shall be lawful for the Secretary to appoint and send out a commission for the purpose of treating with such Indians for the purchase of such title or interest; and the result of such negotiations shall be communicated to Congress.
On December 7,1893, Mr. Rawlins introduced IT. R. 4511, 53d Congress, 2d session, which proposed to authorize and direct the Secretary of the Interior, through a commission, to make allotments to the Indians upon the Uintah and Un-compahgre Indian Reservations, and provided for disposition of the unallotted lands. H. R. 4511 provided, in section 9 thereof:
That said Commissioners may adjust and settle any claims of the Indians against the United States, make adequate and just compensation to them for the relinquishment of any rights or claims which they may have in any lands within said Reservations, such payments to ■and provisions for the Indians to be out of the proceeds of the sale of the lands as hereinbefore provided; * * *
H. Res. 45, and H. R. 4511 were referred by Congress to the Secretary of the Interior and the Commissioner of Indian Affairs for reports. These officials reported to Congress their opposition to the enactment of the legislation in its present form, stating as grounds, inter alia, that the Indians residing upon the Uintah Reservation had title to their lands which should not be extinguished except after negotiation and purchase, and with the consent of the Indians.
Neither H. Res. 45 nor H. R. 4511 was enacted. However, Congress enacted the act of August. 15, 1894, 28 Stat. 286 , 337, which directed the appointment by the President of a commission (1) to make allotments in severalty to the Un-compahgre Indians within the reservation referred to in *18 finding 10, with, a provision that the Uncompahgres would be required to pay $1.25 per acre for the lands so allotted, from the proceeds of the sale of their Colorado lands under the 1880 Agreement and Act; and (2) to “negotiate and treat with the Indians properly residing upon the Uintah Indian Reservation, in the Territory of Utah, for the relinquishment to the United States of the interest of said Indians in all lands within said reservation not needed for allotment in severalty to said Indians, * * *”
13. The commission authorized by the act of August 15, 1894, sufra, was appointed, but on January 8,1895, reported that it had encountered difficulty in explaining to the Un-compahgres why they would be required to pay $1.25 per acre for their allotments, whereas the Indians on the Uintah Reservation would not be required to pay for their allotments. As a consequence, no allotments or agreements for cession of unallotted lands were made.
14. Section 3 of the act of February 28,1891, 26 Stat. 794 , authorized the leasing of Indian lands “where [such] lands are occupied by Indians who have bought and paid for the same, * * On May 6, 1892, the Secretary of Interior ruled that lands of the Uintah Reservation were occupied by Indians who had “bought and paid for the same” within the meaning of the act. The validity of a lease upon Uintah Reservation lands made pursuant to this authority was upheld by the Supreme Court of Utah, 45 Pac. 348 , against an attack that Uintah Reservation lands had not been “bought and paid for” by the Indians. On November 17, 1897, Assistant Attorney General Van Devanter issued an opinion to the Secretary of the Interior on the subject, in which he undertook a review of the various acts of Congress and executive and administrative action with respect to the tenure of the Uintah and White River Indians on the Uintah Indian Reservation. He held that the Uintah Reservation lands came within the purview of the act, stating:
It is clear that the Indians on this reservation gave up what were to them valuable rights for the purpose of securing a place for permanent homes, and some of the White River Utes relinquished rights to land in Colorado which had been guaranteed them by treaty stipulation. It would seem thus, that they may very *19 justly be considered as Indians who are occupying lands which they “have bought and paid for” within the purview of said act of 1891. The fact that this has heretofore been held by the supreme court of Utah, the State within which the lands are situated, is a persuasive argument in favor of the same conclusion by this Department. Again the fact that the holding of this Department has always been in favor of such ownership in these Indians tends strongly in favor of that conclusion now.
In 1898 the Secretary approved a lease expressly reciting that the Uintah Reservation lands had been “bought and paid for” by the Uintah and White River Ute tribes, and thereafter other leases were negotiated and approved.
15. The Indian Appropriation Act of June 10, 1896, 29 Stat. 321 , 341-342, authorized the Secretary of the Interior to appoint a commission to negotiate with various Indians located on reservations in Montana and nearby states, and “with the Indians residing upon the Uintah Reservation in the State of Utah,” for the surrender of any portion of their respective reservations. The commission appointed pursuant to this act was directed by the Secretary of the Interior to negotiate with the Uintah and White River Bands of Ute Indians for cession of lands on their reservation to the United States for the allotment of the same in severalty to the Uncompahgre Utes.
The commission, on January 8,1898, negotiated an agreement with the Uintah and White River Ute Indians, whereby the Indians consented to “cede, sell, and relinquish to the United States,” for the use of Uncompahgre allotments, “all right, title, and interest which they may have to the lands necessary for such purposes * * *.” The agreement provided for payment to the Uintah and White River Utes at the rate of $1.25 per acre for the lands so ceded. This agreement was reported to Congress on January 21, 1898, Senate Document No. 80, 55th Congress, 2d session, but was never ratified.
16. The act of January 7,1897, 30 Stat. 62 , 87, directed the Secretary of the Interior to allot in severalty to the Un-compahgre Ute Indians on the Uncompahgre reservation, lands in the Uncompahgre reservation or the Uintah reser *20 vation or elsewhere in the State of Utah, and provided for the disposition of unallotted lands on the Uncompahgre reservation under the public land laws. Pursuant to this act and the act of June 4,1898, 30 Stat. 429 (see finding IT) and the Joint Resolution of June 19, 1902, 32 Stat. T44, amending the act of May 27, 1902, 32 Stat. 245 , 263, (see findings 18 and 19) Uncompahgre Indians were given allotments in severalty upon the Uncompahgre and Uintah reservations, including ultimately 63,915.51 acres in allotments on the Uintah reservation by 1905, and the unallotted portions of the Uncompahgre reservation were opened for disposition under the public land laws. By the act of May 27,1902, as amended by the joint resolution of June 19,1902, the United States appropriated and paid to the Uintah and White River Utes $60,064.48, which had been received from the Uncompahgres for allotments on the Uintah reservation.
17. The act of June 4, 1898, 30 Stat. 429 , directed and authorized the President to appoint a commission to make allotments in severalty with the consent of the Indians properly residing on the Uintah Indian reservation, “to the said Indians, and to such of the Uncompahgre Indians as may not be able to obtain allotments within the Uncompahgre Indian Reservation,” and also provided:
Sec. 2. That said commission shall also obtain, by the consent of a majority of the adult male Indians properly residing upon and having an interest in the said Uintah Indian Reservation, the cession to the United States of all the lands within said reservation not allotted or needed for allotment as aforesaid. The agreement for such cession shall be reported by said commission and become operative when ratified by Act of Congress; and thereupon such ceded lands shall be held in trust by the United States for the purpose of sale to citizens thereof: Provided, That the United States shall pay no sum or amount whatever for said lands so ceded. Said lands shall be sold in such manner and in such quantities and for such prices as may be determined by Congress: Provided, That the amounts so received shall, in the aggregate be sufficient to pay said Indians in full the amount agreed upon for said lands. All sums received from the sale of said lands shall be placed in the Treasury of the United States for said Indians, and shall be *21 exclusively devoted to the use and benefit of the Indians having interests in the lands so ceded.
18. The act of May 27,1902, 32 Stat. 245,263 , provided for individual allotments and disposition of unallotted lands on the Uintah Eeservation, as follows:
That the Secretary of the Interior, with the consent thereto of the majority of the adult male Indians of the Uintah and the White Eiver tribes of Ute Indians, to be ascertained as soon as practicable by an inspector, shall cause to be allotted to each head of a family eighty acres of agricultural land which can be irrigated and forty acres of such land to each other member of said tribes, said allotments to be made prior to October first, nineteen hundred and three, on which date all the unallotted lands within said reservation shall be restored to the public domain: Provided, That persons entering any of said land under the homestead law shall pay therefor at the rate of one dollar and twenty-five cents per acre: And 'provided further, That nothing herein contained shall impair the rights of any mineral lease which has been approved by the Secretary of the Interior, or any permit heretofore, issued by direction of the Secretary of the Interior to negotiate with said Indians for a mineral lease; but any person or company having so obtained such approved mineral lease or such permit to negotiate with said Indians for a mineral lease on said reservation, pending such time and up to thirty days before said lands are restored to the public domain as aforesaid* shall have in lieu of such lease or permit the preferential right to locate under the mining laws not to exceed six hundred and forty acres of contiguous mineral land, except the Eaven Mining Company, which may in lieu of its lease locate one hundred mining claims of the character of mineral mentioned in its lease; and the proceeds of the sale of the lands so restored to the public domain shall be applied, first, to the reimbursement of the United States for any moneys advanced to said Indians to carry into effect the foregoing provisions; and the remainder, under the direction of the Secretary of the Interior, shall be used for the benefit of said Indians. And the sum of seventy thousand and sixty-four dollars and forty-eight cents is hereby appropriated, out of any moneys in the Treasury not otherwise appropriated, to be paid to the Uintah and the White Eiver tribes of Ute Indians, under the direction of the Secretary of the Interior, whenever a *22 majority of tbe adult male Indians of said tribes shall have consented to the allotment of lands and the restoration of the unallotted lands within said reservation as herein provided.
Said item of seventy thousand and sixty-four dollars and forty-eight cents to be paid to the Uintah and White Biver Utes covers claims which these Indians have made on account of the allotment of lands on the Uintah Bes-ervation to Uncompahgre Indians and for which the Government has received from said Uncompahgre Indians money aggregating sixty thousand and sixty-four dollars and forty-eight cents; and the remaining ten thousand dollars claimed by the Indians under an Act of Congress detaching a small part of the reservation on the east and under which Act the proceeds of the sale of the lands were to be applied for the benefit of the Indians.
Pursuant to this act, and amendments thereto, more fully set out hereafter, allotments in severalty, aggregating 39,349.84 acres by 1905, were made to the Uintah and White Biver Indians, and surplus lands (with the exception of forest reserve and reclamation withdrawals and certain mineral entries) were restored to the public domain, and opened for disposition under the public land laws for the benefit of the Indians.
Substantial amounts of these surplus lands were sold, and $1,184,996.33 in proceeds from such sales was set up for the benefit of the Indians under an account headed “Proceeds of Uintah and White Biver Ute Lands.” By Order of the Secretary of the Interior, August 25, 1945, 10 F. B. 12409, all undisposed-of opened lands of the former Uintah Beser-vation were “restored to tribal ownership for the use and benefit of the Ute Indian Tribe of the Uintah and Ouray Beservation in Utah * *
19. The joint resolution of June 19,1902, 32 Stat. 744 , supplemented and modified the act of May 27,1902, supra. The resolution provided:
In addition to the allotments in severalty to the Uin-tah and White Biver Utes of the Uintah Indian Beser-vation in the State of Utah, the Secretary of the Interior shall, before any of said lands are opened to disposition under any public land law; select and set apart for the use in common of the Indians of that reservation such *23 an amount of nonirrigable grazing lands therein at one or more places as will subserve the reasonable requirements of said Indians for the grazing of livestock.
All allotments hereafter made to Uncompahgre Indians of lands in said Uintah Indian Reservation shall be confined to agricultural land which can be irrigated, and shall be on the basis of eighty acres to each head of a family and forty acres to each other Indian, and no more. The grazing land selected and set apart as aforesaid in the Uintah Indian Reservation for the use in common of the Indians of that reservation shall be equally open to the use of all Uncompahgre Indians receiving allotments in said reservation of the reduced area here named.
The resolution also provided that the $10,064.48 previously appropriated by the act of May 27,1902, supra, in satisfaction of claims of the Uintah and White River Tribes of Ute Indians, as set forth in the act, should be paid without awaiting the action of the Indians upon the program of allotments and disposition of unalloted and unreserved lands proposed by the act.
20. The act of March 3,1903, 32 Stat. 982 , 997-8, provided:
* * * That the Secretary of the Interior shall forthwith send an inspector to obtain the consent of the Uintah and White River Ute Indians to an allotment of their lands as directed by the Act of May twenty-seventh, nineteen hundred and two, and if their consent, as therein provided, can not be obtained by June first, nineteen hundred and three, then the Secretary of the Interior shall cause to be allotted to each of said Uintah and White River Ute Indians the quantity and character of land named and described in said Act * * *
21. The act of March 3,1905, 33 Stat. 1048,1069 -1070, extended the time for opening the Uintah Indian Reservation, provided generally for the disposition of unreserved and unalloted lands under the general provisions of the homestead and town-site laws, the proceeds to be used for the benefit of the Indians, made other changes in the provisions of the 1902 Act for the disposal of unalloted lands, and provided for reservation of forest lands and reservoir sites prior to opening, as follows:
That before the opening of the Uintah Indian Reservation the President is hereby authorized to set apart *24 and reserve as an addition to the Uintah Forest Reserve, subject to the laws, rules and regulations governing forest reserves, and subject to the mineral rights granted by the Act of Congress of May twenty-seventh, nineteen hundred and two, such portion of the lands within the Uintah Indian Reservation as he considers necessary, and he may also set apart and reserve any reservoir site or other lands necessary to conserve and protect the water supply for the Indians or for general agricultural development, and may confirm such rights to water thereon as have already accrued: Provided, That the proceeds from any timber on such addition as may with safety be sold prior to June thirtieth, nineteen hundred and twenty, shall be paid to said Indians in accordance with the provisions of the Act opening the reservation.
22. Pursuant to the authority granted by the act of March 3, 1905, supra, approximately 1,010,000 acres of land within the Uintah Indian Reservation (more fully described hereafter) were added to and made a part of the Uintah Forest Reserve, by Proclamation of the President on July 14,1905, 34 Stat. Pt. Ill 3116. Quantities of timber were sold from time to time from such lands prior to 1920, and, pursuant to the act of March 3, 1905, supra, $63,024.83 in proceeds therefrom was transferred to accounts for the benefit of the Indians, as follows: $62,124.83 to an account “Proceeds of Uintah and White River Ute Lands,” and $300 to an account “Indian Moneys Proceeds of Labor, Uintah and Ouray Indians.”
23. Pursuant to the authority granted by the act of March 3, 1905, supra, approximately 93,000 acres of land in the Uintah Indian Reservation were reserved for “reservoir site necessary to conserve the water supply for the Indians, or for general agricultural development,” by proclamation of the President on August 3, 1905, 34 Stat. Pt. Ill 3141. By proclamation of August 14, 1905, this reservation was modified by excluding certain lands, thereby reducing the number of acres to approximately 60,160. By orders of May 13,1907, and November 11,1909, 56,868.51 acres of the 60,160 acres theretofore reserved by the above proclamations, were withdrawn, by the Secretary of the Interior pursuant to *25 Section 3 of the Reclamation Act of June 17, 1902, 32 Stat. 388 , for irrigation works for the Strawberry Valley project.
24. By the act of April 4,1910, 36 Stat. 269 , 285, Congress extinguished “All right, title and interest of the Indians” in the “lands in the former Uintah Indian Reservation in the state of Utah, which were set apart by the President for reservoir and other purposes under the provisions of the Act approved March third, nineteen hundred and five, * * * and which were by the Secretary of the Interior withdrawn for irrigation works under the provisions of the Reclamation Act of June seventeenth, nineteen hundred and two, in connection with the reservoir for the- Strawberry Valley project.” The area embraced within the above description constitutes 56,868.51 acres, and is the subject of the claim for just compensation in case No. 47570 of this court. The same act appropriated $1.25 per acre for the lands thus taken to be paid from the reclamation fund “for the benefit of the Uintah Indians,” subject to the same disposition as the proceeds of sales of lands in the former Uintah Indian Reservation, and payable in five annual instalments. Pursuant to this act, $71,085.65 was paid into the Treasury under the fund “Proceeds of Uintah and White River Lands,” in five equal in-stalments of $14,217.13 on February 21, 1912, October 28, 1912, June 27, 1913, September 22, 1914, and February 25, 1915, respectively. Under date of October 18,1948, the Acting Commissioner of Indian Affairs, in response to a call of this Court, reported that rentals or income from these lands were collected between August 3, 1905, and April 4, 1910, and were paid or credited to plaintiffs, as follows: January, 1908, $10,408; September, 1908, $8,728; September, 1910, $9,945.88. By intradepartmental letter dated August 21, 1911, the Assistant Director of the Reclamation Service stated that these rentals were paid to the Indian Service for the Indians because title was in the Indians until the act of April 4,1910, when title passed to the Reclamation Service, and thereafter rentals were considered revenue belonging to the Reclamation fund.
25. Between 1924 and 1929 several unsuccessful attempts were made to obtain passage of special jurisdictional legis *26 lation to permit the, Uintah and White River Bands of Ute Indians to bring suit in the Court of Claims for compensation for the 1,010,000 acres taken from the Uintah Reservation for the Uintah National Forest, pursuant to the Executive Order of July 14, 1905, supra. The first attempt was with the introduction of S. 3080, in 68th Congress, 1st session, a bill “for the relief of the Uintah and White River Tribes of Ute Indians of Utah” which proposed to confer “jurisdiction upon the Court of Claims to hear and determine the rights of said Indians under an agreement ceding lands embraced in their reservation to the United States and under acts of Congress relating thereto.” In reporting favorably upon the bill, the Senate Committee on Indian Affairs stated that the Uintah and White River Bands “held title jointly and in common” to the Uintah Reservation. Following a general description of the 1,010,000 acres of forest land taken in 1905, the Committee concluded that “The Government having taken these lands (which it was, under the agreement and the law, required to sell for the benefit of the Indians) for a forest reservation, it is, of course, responsible to the Indians for the value of the lands so taken.” S. 8080 passed the Senate and later the House with an amendment, but Congress adjourned before conferees could act.
In 1926 a bill of like import, S. 1924, was introduced in the 69th Congress, and passed the Senate. The House Committee on Indian Affairs reported favorably on the bill, stating that since 1881 the Uintah and White River Bands “held title jointly and in common” to the Uintah Reservation, and that “By subsequent acts of Congress the use and occupancy of the lands by these Indians were repeatedly recognized and confirmed.” The House, however, did not take final action upon the bill.
In 1928 S. 2482 was introduced and passed in the Senate for the relief of these Indians, reported by the House Committee on Indian Affairs, but withdrawn from further consideration when it came up in the House. H. R. 16985, introduced in the 70th Congress in 1929, passed both the House and Senate but received a pocket veto.
*27 26. These unsuccessful attempts to enact special jurisdictional legislation finally culminated in 1930 in the introduction of S. 615, 71st Congress, 2d Session, which provided for direct payment to the Uintah, White Biver, and Uncom-pahgre Bands of Ute Indians, at the rate of $1.25 an acre, for the lands which were taken pursuant to the Executive Order of July 14,1905, supra. This was the first legislative reference to the Uncompahgre Band of Ute Indians with respect to this claim. The report of the House Committee on Indian Affairs took cognizance of the hearings and reports in connection with the earlier attempts to get special jurisdictional legislation for the Uintah and White Biver Bands of Ute Indians and concluded that title to the Uintah Beservation since 1881 had been held “jointly and in common” by the Uintah and White Biver Bands. The Committee reported that “Their title to the land has never been challenged and has been repeatedly recognized by treaty, congressional acts, and court decisions.”
When the bill came before the House on the Consent Calendar, a question was raised with respect to the Indians’ title. Consequently, the bill was passed over without prejudice. When the bill was brought up for consideration again, there was inserted into the Becord a lengthy and documented “Deraignment of Title of Uintah, White Biver Utes, to Their Lands and In Support of S. 615 — Statements of Charles J. Kappler, Esquire, Attorney, Washington, D. C.,” after which it was observed that there was no “well-founded question” as to the title of these Indians, and the bill passed the House. There was no mention of the Un-compahgre Utes as having any interest in the lands, nor any explanation for their inclusion in the payment under the bill.
27. S. 615 was enacted into law on February 13, 1931, 46 Stat. 1092 , providing for direct payment for 973,777 acres of the 1,010,000 acres of land taken for the Uintah National Forest on July 14,1905, in the following terms:
* * * That there is hereby authorized to be appropriated the sum of $1,217,221.25 for payment at the rate of $1.25 per acre, to the Uintah, White Biver, and Un-compahgre bands of Ute Indians in the State of Utah for nine hundred and seventy-three thousand seven *28 hundred and seventy-seven acres of land, belonging to such Indians being a part of the one million and ten thousand acres of land withdrawn from entry and sale by an Executive Order dated July 14,1905, and included within the Uintah National Forest. Such sum shall be in full satisfaction of all claims of said Indians against the United States with respect to such lands and shall, when appropriated, be apportioned by the Secretary of the Interior among the said bands of Indians in such amounts as in his opinion the interests of said bands require: Provided, That as to the balance of said one million and ten thousand acres, amounting to thirty-six thousand two hundred and twenty-three acres, which has heretofore been classified as coal lands, the Secretary of the Interior shall proceed with all convenient speed to ascertain the value thereof and report his findings with respect thereto to the Congress not later than six months after the approval of this Act for such action as to the Congress shall seem appropriate. The amounts so apportioned, less the amount of the attorneys’ fees determined as provided in Section 2, shall be credited to such bands on the books of the Treasury Department, shall bear interest at the rate of 4 per centum per annum and shall be disposed of in the same manner as now or hereafter provided by law for the disposition of other funds belonging to said Indians.
28. Pursuant to the act of February 13,1931, $1,217,221.25 was set up on the books of the United States Treasury under the heading “Payment to Uintah, White River, and Uncom-pahgre Ute Indians of Utah for Lands.” After payment of attorneys’ fees, $1,162,221.25 of said amount was transferred to the “Uintah, White River and Uncompahgre Ute 4% Fund, Utah.” $1,146,319.50 of said funds was distributed per capita to the Uintah, White River, and Uncom-pahgre Bands of Ute Indians in the years 1935, 1936, and 1938. The Uncompahgre Indians received the benefit of $439,466.88 of the $1,217,221.25 appropriated pursuant to the Act of February 13,1931, supra.
29. The area of land for which plaintiffs seek just compensation in this action consists of 973,777 of the 1,010,000 acres of the former Uintah Indian Reservation in Utah which were placed by defendant in the Uintah National Forest on July 14,1905. The balance of 36,223 acres which was separately classified as coal lands and for which no payment was *29 made by tbe act of February 13, 1931, is the subject óf a separate action, No. 47568. The legal description of the 973,777 acres, sometimes hereinafter called “subject lands” or “subject area”, is contained in paragraph 25 of the stipulation between the parties, filed January 4,1954, which paragraph is included in this finding as if fully set forth.
The subject lands are now within and. administered as parts of the Uintah and Ashley National Forests in Utah. The national forest boundaries within the subject lands have changed from time to time so that in years past the subject area has been part of the Uintah, Ashley, and Wasatch National Forests in Utah.
30. The Uintah Indian Eeservation as created by the Executive Order of October 3,1861, and the act of May 5,1864, included the entire drainage of the Duchesne (then Uintah) Eiver system. The original reservation was the major part of the Uintah Basin which extends eastward beyond the Indian reservation and includes the towns of Jensen and Vernal, the latter being about 12 miles east of the east boundary of the reservation.
The original Indian reservation was surrounded on the north, west and south by mountains, the crest of which was the reservation boundary. It was these mountain lands lying at higher elevations than the balance of the reservation, and being roughly in the form of a horseshoe open at the east end, which were added to the Uintah Forest Eeserve by the Proclamation of July 14, 1905. The interior boundary of the horseshoe-shaped area coincides with present boundaries of the Uintah and Ashley National Forests. The westernmost part of the subject lands is about 45 airline miles east of Salt Lake City, Utah. The lands extend eastward about 70 miles to a point about 45 miles west of the Utah-Colorado State line. The north arm extends northward to within about 12 airline-miles of the Wyoming State line. The area between the north and south arms is about 35 miles in width. The north arm is about 20 miles wide and the south arm about 10 miles wide at their widest points. The western part is irregular in shape, varying in width from less than one mile to about 15 miles.
*30 Generally speaking, the western part of the subject lands lies within the present boundaries of Wasatch County with a very small area in Utah County, and the north and south arms lie within the present boundaries of Duchesne County, with the extreme east end of the north arm being in Uintah County.
31. The elevation of subject lands ranges from about 7,000 feet at the inside boundary, which follows section and township lines rather than topography, to the crest of mountains which exceed 13,000 feet at the highest peaks. About 90 percent of subject lands lie at elevations above 8,000 feet.
The north arm extends about 40 miles along the south slope of the Uintah Mountains, an east-west range of the Rocky Mountains. The upper reaches of the north arm are rocky barren ridges and peaks (some exceeding 13,000 feet) rising abruptly from large glaciated basins located high in the Uintah Mountains. These basins have a shallow soil with a grass cover and some meadows. They drain into canyons which are steep and rugged in their upper areas and thereafter widen into areas extensively covered with good forage. The principal streams originating in the high basin areas and flowing southerly through the various canyons are, from east to west, the Whiterocks River, the Uintah River, the Yellowstone River, Lake Fork River, Rock Creek and the north fork of the Duchesne River, all of which are tributaries of the Duchesne River. Ridges extending southerly from the crest of the Uintah Mountains and separating the various canyons are high and barren or inacessible at their summits in the upper and middle areas of the north arm, with coniferous forests predominant on their slopes. In the lower parts are areas of aspen woodlands, sagebrush, mountain browse, grassland, and coniferous timber.
The western part of the subject lands is characterized by a succession of valleys on the east side of the Wasatch Mountains, with the elevation rising to a maximum of about 10,000 feet. The slopes are covered with forage desirable for the grazing of livestock, with extensive areas of aspen woodland having excellent undercover and with some coniferous forest, mountain browse and sagebrush areas. There is very little barren or inaccessible land. This part of sub *31 ject lands extends roughly from the north fork of the Duchesne River westerly, southerly, and then easterly into lands south of the Strawberry Reservoir withdrawal. Both the Strawberry Reservoir and coal-lands, withdrawals impinge upon this part of the subject lands, with the Strawberry withdrawal enclosed by subject lands on its north, west and south sides, and with one area of the coal lands completely surrounded by subject lands and the other adjacent to the east. The west fork of the Duchesne River fed by mountain streams runs through the northern part of this area of the subject lands. Numerous mountain streams throughout the other parts of this western area form the headwaters of Red Creek, Currant Creek and the Strawberry River, which rise on subject lands, flow through the coal lands and Strawberry site and into lower levels of the Uintah Basin, and in conjunction empty into the Duchesne River.
The south arm, considerably smaller in area and dimensions than the north arm, constitutes mountainous lands sloping northerly from a maximum elevation of 10,000 feet. In its principal canyons from west to east flow Willow Creek, Timber Creek, sources of Avintaquin Creek, and towards the eastern end, intermittent streams in Indian, Sowers and Antelope canyons, all part of the drainage system of the Uintah Basin. The south arm has areas of grassland, sagebrush, aspen woodlands, pinon-juniper, mountain brush, coniferous forest, and some wasteland.
32. Average precipitation on subject lands ranges from a low of 10 to 16 inches per year on the lower portions to from 25 to 40 inches per year on the higher elevations. The year 1905 was marked by better than average precipitation. The bulk of the precipitation falls in the form of snow between the months of October and May. Temperature extremes range from 40 degrees below to 95 degrees above zero Fahrenheit. For the greatest proportion of subject lands, the growing season extends from May 15 to September 15, with slightly longer growing season at the lowest elevations and considerably shorter above the timber line and in the highest elevations. Precipitation in the Uintah Basin, as in most western grazing areas, increases in relation to alti *32 tude, and a more abundant and desirable forage is generally found on the vast grazeable areas of the subject lands than is found on the lower elevations of the Uintah Basin.
33. The mountain streams distributed throughout subject lands provide year around flow, except for a few intermittent streams in the eastern portion of the south arm. Sufficient seeps exist in this latter area to permit summer grazing, but fullest utilization of this relatively small portion of subject lands is in spring and fall grazing, with all the rest well watered for summer grazing.
34. The soil is typical of mountain areas. The high peaks and ridges of the Uintah Mountains are largely sharp quartzite rocks, which are so hard they have withstood weathering. There is no evidence of a soil being formed. The high alpine basins have a very shallow soil. On the Uintah foothills the soil is of glacial origin, thickly dotted with rocks and boulders. At the lower elevations, and particularly on the west end and south arm, the soil is sandy or gravelly loam with some clay, the soil being deeper in the valleys and on the less steep slopes. Shale is found in the eastern portion of the south arm.
35. There was no land classification report on the subject area in 1905 or for about ten years thereafter. The earliest comprehensive classification reports were made by the United States Forest Service about 1915. Those reports show the following with respect to acreages of lands with various types of forage cover:
The difference between the total of the percentages and 100 percent reflects minor mathematical adjustments in rounding off figures and a negligible area of water surface acres and alienated land in the 1915 reports.
*33 38. The broad classification set forth in the preceding finding is not in accord with modern classification techniques. In accordance with present day practices, the subject lands are described as follows:
Grassland, type No. 1, on subject lands is characterized by open areas, free of trees or browse, on which the growth is principally mountain grasses or grasslike plants. Much of the grasslands is in the high alpine basins of the Uintah Mountains where the growing season is short.
Meadow lands, type No. 2, in the subject area are found principally in the vicinity of high mountain lakes, and along the flat areas adjacent to rivers. This cover differs from the grassland because of the abundance of moisture and the resulting differences in density and quality of forage. These wet lands are avoided by sheep but preferred by cattle.
Perennial weeds or forbs, type No. 3, in subject area are characterized by all types of high altitude weeds or forbs, growing in relatively open areas not dominated by shrub or tree growth. This type results from an encroachment of weeds into grasslands that have been overgrazed, although many of the invading weeds continue to supply palatable forage to livestock.
Type No. 4, or sagebrush lands, is one of the most common types found below the alpine zone in subject area. Sagebrush tends to replace other forage plants that die out from over use. The sagebrush plant itself is not highly palatable, but much good grazing is found in the area classified as sagebrush lands in subject area because of the good understory of grasses and weeds.
Type No. 5, mountain-browse lands on subject area, is characterized by palatable woody forage plants such as scrub oak, serviceberry, mountain mahogany, choke cherry, etc., generally growing on slopes. Some grasses and forbs are present in this type. Mountain browse lands usually support good grazing, unless slopes are too steep or rocky, providing better forage for sheep than for cattle.
Type No. 6, coniferous timber land, is characterized by the predominance of evergreen trees, other than pinon-juniper varieties. Englemann spruce and lodgepole pine, with some western ponderosa or yellow pine, make up the *34 coniferous cover on subject lands. Some of tbe coniferous timber areas support a usable understory of grasses and weeds, but others are so dense that no grazeable cover grows thereon.
Where timber of poor merchantable quality, as occurs in some places of subject lands, is so dense as to preclude grazing use, it may be classified in type No. 7, as inaccessible land, along with other types of land which support some forage but on slopes so steep or rocky as to make it unsuitable for grazing.
Type No. 8, barren lands, in the subject area consists of barren, high, rocky crags and peaks, generally above the timber line. Nearly all of the lands of this type in subject area are found in the north arm along the peaks and high ridges of the Uintah Mountains, and extending in places down into canyon gorges and walls.
There is relatively little type No. 9, or pinon-juniper land, in subject area because this type usually prevails at elevations below 7,000 feet. It is characterized by stands of evergreen trees of pinon and juniper variety, usually in shallow rocky soils. Some portions of this type do support a usable understory of dry land grass types, and occasionally some browse or sage. The principal pinon-juniper areas of subject lands are located in the east end of the south arm.
Type No. 10, broadleaf tree lands, in subject area is characterized by large stands of aspen or aspen and narrow leaf cottonwood, usually found where the soil is rather deep and of a loamy character. This type generally supports a very good understory of grass and browse and offers some of the best grazing resources on subject lands. It is usually located in areas accessible to livestock, and extensive areas of this-type are to be found in the western part in the drainages of the west fork of the Duchesne Eiver, Eed Creek, Current Creek, and the Strawberry Eiver, and also substantial areas in the southern parts of the north arm.
37. Some changes in the nature and quality of the cover upon subject lands have occurred in the years since 1905. Sagebrush, rabbit brush, and forbs have invaded areas previously occupied by grassland, and the quality of the forage has somewhat deteriorated. The timber has matured, but *35 very slowly. With the exception of these changes in forage,, physical conditions on subject lands have remained relatively stable.
38. Portions of the subject lands had been used by non-Indians for sheep and cattle grazing since about 1880'. In the 1880’s prior to any official leasing to non-Indians,, thousands of cattle were grazed by white owners from Strawberry Valley at the western end of the original Uintah Reservation to Green River, which runs in a southerly direction some miles east of this reservation. Shortly thereafter thousands of sheep were trespassed upon the high summer ranges at the western end of the reservation. In 1893, the first official leases were executed, permitting cattle grazing over the western end of the reservation, including large portions of subject lands. Sheep trespassing continued extensively, so that the trespass use during some years actually exceeded the grazing use under the cattle leases. In 1900, the western end of the reservation, constituting approximately 800,000 acres, including large areas of subject lands, was divided into three ranges and leased to non-Indian livestock operators for the grazing of sheep and cattle, and in 1901, another area of approximately 80,000 acres lying to the east of the other three ranges was leased. Grazing use under these leases continued until July 14,1905, and beyond. This earlier grazing use of subject lands tended to center in the better grazing lands in the western end of subject area from the north fork of the Duchesne around to the Avintaquin drainage. Some grazeablé portions of subject land were still relatively unused as of 1905.
39. The condition of the range over subject lands as a whole in 1905 was good. Forage growth was better in quantity and quality than at the present time. Overgrazing was slight and highly localized.
In the years after 1905, and especially during World War I, the range on subject area deteriorated under extensive grazing. Beginning in the 1920’s, the Forest Service interposed a policy, which has continued to the present, of progressively reducing the number of livestock permitted to graze in the area, and reducing the grazing season. The average grazing season of the area as a whole is presently *36 from about mid-June through late September. However, in or about 1905, the average grazing season extended from early May to October, with some fall and spring grazing. The present grazing use of the subject area is substantially helow its grazing use in and around 1905.
40. Under modern range management practices, the grazing resources of subject area are measured in terms of ■carrying capacity, or ability to support livestock for a given length of time, expressed in terms of acres required per .■animal unit month of grazing. A prospective purchaser in 1905, would not have estimated grazing resources of the subject area in terms of acres per animal unit month, but would have attempted to make some inventory of the available forage resources in terms of the number of livestock which could be grazed upon the range. Such an estimate by a well-informed purchaser in 1905 would have shown grazing resources equivalent to 181,000 animal unit months of grazing, expressed in modern terminology, or an acreage requirement of approximately 5.43 acres per animal unit month of grazing. An animal unit month is the amount of forage required to feed an average adult cow or horse, or five adult sheep for one month.
41. Coniferous timber, other than the pinon-juniper type, makes up the merchantable timber resources on subject lands. The conifers occur in four major types; lodgepole pine, Engleman spruce, ponderosa or western yellow pine, and Douglas fir. The aspen growth occurring over extensive areas of subject lands has no commercial timber value.
Lodgepole pine comprises the largest area and percent of merchantable timber on the subject lands. It predominates in the northeast sections of subject area, in the Ashley National Forest. The Engleman spruce type often occurs interspersed with the lodgepole pine, but also grows in substantial pure stands in more favorable moisture situations, such as the north slopes of the small creeks at higher elevations and at the head of the upper basins. The yellow pine, which is the most valuable commercial timber, occurs in open and irregular stands in the Yellowstone, Dry Fork, and Uintah River areas, generally along the lower borders of the subject area. The Douglass fir type occurs most fre *37 quently in the lower areas about tbe Strawberry Reservoir site, and along the southern arm of subject lands.
42. As of July 14, 1905, there were from 1,200,000 to 1,500,000, thousand-board-feet of timber on subject area, to which Forest Service officials, in 1915 and 1916, attributed a total value of $1,218,625. These value estimates, apparently based upon an attempt to estimate the intrinsic value of the timber, are not a reliable indicia of the market value of the timber lands in 1905, but do indicate that there was substantial timber on subject lands of merchantable quality.
Timber resources in forest areas on the west slopes of the Wasatch Mountains, west of the subject lands, had been heavily exploited in the years prior to 1905. These forest areas were accessible to the populated areas between Salt Lake City and Provo, Utah, as well as settlements on the west slopes of the Wasatch Mountains. The timber resources of the subject lands, being within the original Uin-tah Indian Reservation, had never been offered for sale, and there was little local demand and inadequate transportation facilities for commercial lumbering operations. Prior to July 14, 1905, the pending opening of large areas of the lower lands of the reservation for settlement, combined with the expected construction of a railroad through the Uintah Basin, created an expectancy of a demand for the virgin timber resources of the subject lands, and lumbering men were giving consideration to the commencement of lumbering operations.
The Forest Service received the average sum of $4,988 annually during the years 1906 through 1910 on sales of timber from subject lands, and, in addition, permitted free use to settlers of the Uintah Valley of timber averaging in value about $2,000 per year in the early years of the Forest Service Administration. Without rail facilities, substantial commercial operations failed to develop, and timber cutting was largely limited to local demand, but as late as 1915, construction of rail facilities and timber development were still expected.
43. The first permanent non-Indian settlements in Utah commenced with the arrival of the Mormon pioneers on July 24,1847, on the site of Salt Lake City. From this cen *38 ter of activity and growth, the Mormon settlers soon established principal communities in the areas of Ogden, Salt Lake City and Provo, located in relatively extensive and level valley areas extending north and south at the foot of the western slopes of the Wasatch Mountains. The Territory of Utah was organized in 1850. Grazing activities from the population centers reached into the west slopes of the mountains adjacent to the western part of the subject lands as early as 1859. Wasatch County, adjoining subject lands to the west, was organized in 1862. To the east of the original Uintah Reservation, permanent settlements at Jensen and Vernal were founded prior to 1880, and Uintah County was organized in 1880.
Prior to July 14,1905, the Uintah Indian Reservation had not been opened to settlement of any kind by non-Indians. The only white population in the reservation consisted of Indian Service personnel, grazing lessees, soldiers stationed at Fort Duchesne and, possibly, mineral lessees. On July 14, 1905, it was known that the unallotted and unreserved lands within the Uintah Indian Reservation were to be opened to settlement under the public land laws the following month. It was anticipated that this would bring in an additional population.
44. In the years immediately preceding and following July 14, 1905, the area environing subject lands was undergoing a period of population increase. Between the years 1890 and 1900, Wasatch and Uintah Counties, adjoining subject lands to the west and east, increased in population respectively from 3, 595 to 4,736 and from 2,762 to 6,458. Between 1900 and 1910, Wasatch County increased further from 4,736 to 8,920, and Uintah County from 6,458 to 7,050.
The population of Utah increased from 276,749 in 1900 to 373,351 in 1910, with approximately 35 percent of the total population in the valleys from Ogden to Salt Lake City to Provo, approximately 45 to 70 miles west of the western part of subject lands.
45. In 1905, transportation in the original Uintah Indian Reservation was limited to wagon roads which provided access to nearly all parts of Uintah valley below 7,500-foot elevation. Only two wagon roads crossed the subject lands, *39 one through, the western part to Heber, Utah, about 14 miles west of subject lands, and the other through the south arm to Price, Utah, about 18 airline miles south of the south arm of subject lands. This latter road was used to transport supplies for the Indian Service. Both of the roads through subject lands were often impassable in winter because of snow. The existing roads were adequate for grazing use of subject lands, but were not adequate for commercial lumbering operations.
46. There were no railroads into or through the subject lands or the Uintah basin in 1905. The main line of the Denver and Rio Graiide Railroad from Denver to Ogden had been completed in 1883, affording shipping points about 4 to 6 miles south of the south arm of subject lands. In 1899, a branch line of this railroad was extended to Heber, 14 miles west of the western part of subject lands. The north arm remained rather remote from rail facilities. Although this railroad was adequate for the shipping of livestock grazed upon subject lands; it was inadequate for commercial lumbering operations.
47. Construction of a railroad through the Uintah Yalley was expected in 1905. The projected line of the Denver and Salt Lake Railroad, from Denver to Salt Lake City, via the Uintah Basin, commenced construction in 1902, and was scheduled for completion by 1912. While actual construction of this line, because of financial difficulties, terminated at Kremling, Colorado, in 1906, and ultimately at Craig, Colorado, in 1913, planned construction through the Uintah Basin was fully expected for many years after 1905. Anticipating this scheduled construction, the Uintah Railroad had been constructed in the years 1904 and 1905 from Mack, Colorado, to Watson, Utah, 60 miles east of subject land, with the original intention of connecting the Denver and Salt Lake Railroad, being built from Denver, with the Denver and Rio Grande Railroad at a terminus in the Uintah Yalley. These prospects of railroad construction exerted a favorable influence on economic conditions in the area en-vironing subject lands in 1905.
48. July 14, 1905, was in a period of favorable economic trends, both national and local. Real estate values and inter *40 est rates were bigh. Price levels for commodities were generally steady and rising slowly. Livestock population was near peak levels. Per-head values for cattle were temporarily depressed, but demand was steady and prices for slaughtered steer products were increasing. Sheep values per-head and for slaughtered products were increasing.
Between the years 1900 and 1910 the number of farms in Wasatch County practically doubled, while increasing by about 20 percent in Uintah County, which included at that time all of the farm land in the Uintah basin. Over the same period the number of irrigated acres more than doubled in both counties, and value of farm lands increased several fold.
49. In 1905 summer grazing lands were in demand in Utah, and especially in and about the area of subject lands. Abundant winter grazing lands were available, with summer ranges relatively scarce. Some Utah livestock operators who operated in the general area of subject lands had been required by lack of availability of sufficient summer grazing lands to move their livestock operations into nearby states.
50. The subject lands, particularly in the Uintah Mountains, had been thoroughly prospected for minerals prior to 1905. In 1905 there were no known mineral deposits which added a separate value to the subject lands and no separate mineral value has been claimed by the plaintiffs.
51. As of July 14,1905, subject lands, or portions thereof, were potentially adaptable to several economic uses, including livestock grazing, timber cropping, water shed protection, water storage, water power and recreational use. The highest and best use of subject lands was as a summer grazing pasture for sheep and cattle. The timber resources could have been exploited without detracting from grazing use, but demand for this timber in 1905 was slight, and the timber resources would have added value to subject lands in relation to the extent that the expected coming of the railroad would cause prospective purchasers to forecast a future demand. There was not sufficient demand for the water development and recreational resources of subject area, as such, to have had a measurable effect on the market value of subject lands in *41 1905, but the presence of sucb resources would have had a generally favorable influence on prospective purchasers.
Both parties accepted market value as of July 14, 1905, as the standard for valuation of subject lands. The evidence adduced by both parties, in determining market value, took into consideration the physical characteristics of the land and the uses to which it was adaptable in 1905. Both parties agreed that market value was best evidenced by market data — i. <?., the price paid for comparable lands, similarly situated, at or near the date of valuation.
52. The principal appraisal witnesses in this case were Watson A. Bowes, called by plaintiffs, and Werner Kiepe, called by defendant. Each prepared an elaborate appraisal report, plaintiffs’ exhibit 41, being the Bowes report, and defendant’s exhibit 1, being the Kiepe report. In addition, the plaintiffs adduced the testimony of Dean Mahaffey and Dr. Franklin S. Harris as to their opinions of the value of subject lands.
The ultimate opinions of these witnesses as to the market value of the 973,717 acres of subject lands as of July 14,1905, were from the lowest to the highest as follows:
Kiepe, $730,000, or about $0.75 per acre;
Bowes, $1,305,000, or about $1.34 per acre;
Mahaffey, $1,704,000, or about $1.75 per acre; and
Harris, $2,011,389, or $2,065 per acre.
53. Mr. Bowes, a member of the real estate firm of A. G. Bowes & Son, Denver, Colorado, was a professional real estate appraiser with 23 years’ experience, having entered that field with the above-named firm upon his graduation from Washington and Lee University in 1931 with a Bachelor of Science degree in business administration. In 1933 and 1934 he successfully completed two courses in real estate appraisal offered by the Denver Board of Kealtors, and in 1940 graduated from such a course at Tulane University. He is presently in charge of the appraisal section of his firm, and has had a varied experience in all phases of real estate business.
He has been a member and officer of various city, state, and national professional associations, serving as president of the Denver Kealty Board in 1934, president of the Denver *42 Board of Realtors in 1951, president of the Colorado Association of Real Estate Boards in 1947, director of the National Association of Real Estate Boards for three years and a member of the executive committee thereof, first member from Colorado of the American Institute of Real Estate Appraisers in 1940, and national president of the latter organization in 1958, after having served three years as a member of its board of governors and two years as chairman of its education committee.
From 1941 to 1948 he taught courses at the University of Denver in real estate appraising and real estate principles and practices. He also lectured on real estate appraising at Boston University in 1947, at Washington University of St. Louis in 1949, and at Indiana University in 1952, in courses sponsored by the American Institute of Real Estate Appraisers.
Mr. Bowes’ experience included appraisal services performed for several national life insurance companies, a number of state and national banks, and savings and loan associations of Denver, for oil companies, railroads, and others.
His real estate appraisal experience also includes services for several departments and agencies of the United States, and various Colorado and Denver governmental agencies.
Mr. Bowes had extensive experience with western grazing lands and ranches. He personally owned two farms and was a partner in a third in Colorado, has served as a consultant on the acquisition or disposition of large ranches in Colorado and Wyoming, and also as consultant of the Colorado State Board of Land Commissioners with respect to its policies in leasing or disposing of state lands, a great majority of which were grazing lands.
Among the most important appraisals done by Mr. Bowes involving large areas of western ranch and grazing lands were the Colorado Big Thompson Diversion project involving large areas of mountain grazing land on the western slope of the Rocky Mountains in Colorado, one million acres of land in Arizona for an air gunnery range, the Los Alamos Ranch School in New Mexico, 200,000 acres of land near Albuquerque, New Mexico, acquired for-bombing range pur *43 poses, 857,000 acres of farm land and livestock grazing land in southeastern Kansas, several prisoner-of-war sites in New Mexico and Colorado, a large portion of the land now comprising Camp Carson at Colorado Springs, Colorado, and the appraisal of approximately four and one-half million acres of grazing land in western Colorado in connection with a suit in this court, No. 45585, Confederated Bands of Ute Indians v. The United States.
The appraisal of the lands in western Colorado for the Ute Indians was made by Mr. Bowes in 1946 and 1947 for a valuation as of a date in 1938; and the appraisal of the extensive areas of southeastern Kansas was made in 1952 for a valuation as of 1865. Mr. Bowes has also made several appraisals for private clients in tax cases before the Internal Eevenue Service, in which it was necessary at a recent date to establish the market valué of property as of March 15, 1913.
Mr. Bowes has previously qualified to testify as an expert appraiser before this Court, the United States District Courts for New Mexico and Colorado, several state District Courts of Colorado, and before the Indian Claims Commission. His previous appraisal experience has been in Colorado, New Mexico, Arizona, Montana, Wyoming, Oklahoma, Florida, Virginia, and the Province of British Columbia.
54. The purpose of Mr. Bowes’ appraisal was to arrive at an opinion of the market value of subject lands as of July 14,1905. Mr. Bowes understood “market value” to be “ * * * the highest price, fairly determined in terms of money, which could be commanded for the property by a seller who is willing and able but not obliged to sell and is well informed as to the rights and benefits inherent in or attributable to the property, from a buyer who is willing and able but not obliged to buy and is also well informed as to the rights and benefits inherent in or attributable to the property if the property is exposed to sale in the open market for a reasonable length of time.” In arriving at his opinion he used two approaches, accepted and recognized as standard approaches by the appraisal profession. The first approach was the comparative or market data approach, which assumes that the market value of the property under appraise *44 ment tends to be set by the price at which, similar properties have been sold. It was considered by him to be the most reliable approach to market value. The second approach was the income or productivity approach, which assumes that the market value of land tends to be set by the amount of rental income that it is capable of producing. This approach requires the collection of data on the actual and potential rentals from subject area, analysis of the relationship between the rentals and market price for comparable areas and types of land, and the capitalization of the rental received by the property under appraisement by the gross rental multiple thus derived. Because it did not reflect all the aspects of ownership, the productivity approach in this instance was used primarily as a check on the market data approach.
55. In order to familiarize himself with all of the pertinent characteristics of the subject lands, Mr. Bowes and other technical and professional assistants under his direction made an elaborate analysis of the physical characteristics, economic characteristics, and the economic uses of the subject lands and the environing vicinity, based upon physical inspection and upon extensive documentary research, endeavoring to ascertain the conditions existing as of 1905.
56. After obtaining the correct legal description of the property and plotting it on various maps, Mr. Bowes made a preliminary survey of the property in April of 1952, including a field trip to the property, a preliminary inspection of the areas in which comparable sales data might be obtainable, contacts with county recorders’ offices and title companies to ascertain the availability of comparable sales data in the area environing subject lands as of 1905, and an investigation of the availability of maps, reports, and historic and economic data. This preliminary survey and investigation required approximately 12 days. Mr. Bowes then formulated a plan for the appraisal of subject area to be conducted by him or by other employees under his supervision.
. 57. Mr. Bowes, or his associates under his supervision, collected extensive data relative to the historical background of the subject area, the economics of the period, the population *45 trends and statistics of the area at the date of appraisal, information relative to railroads and other transportation facilities, and information with respect to agricultural prices. He also assembled extensive documents bearing specifically upon the physical characteristics of subject lands, including maps obtained from the Forest Service and the Soil Conservation Service showing the types of cover on subject lands and adjoining private lands, aerial mosaics and U. S. G. S. maps showing general contour and topography, reports of Forest Service and other government agencies describing subject lands, the timber, grazing, and water resources found thereon, and the income received from rentals of the subject lands.
58. Following assembly of the pertinent documentary data, an inspection of the subject lands was undertaken by Mr. Bowes, and Mr. Dean Mahaffey under Mr. Bowes’ supervision. Mr. Bowes personally spent several days in the field traversing substantially all of the areas of subject lands which could be reached by a four-wheel-drive vehicle. Mr. Mahaffey, a qualified and experienced range inspector and land classification expert, under Mr. Bowes’ supervision, spent additional time covering the inaccessible portions of subject lands on foot and by horseback, and reported his findings to Mr. Bowes. Mr. Bowes’ physical inspection of the subject area was complemented by two air views of the subject area, involving approximately 8 hours of flying time spent in viewing the entire subject area at low altitudes with maps and surface field inspection notes in hand as guides.
59. To better familiarize himself with conditions prevailing in the subject lands in 1905, Mr. Bowes conducted interviews with 25 to 30 persons who had lived in the area or operated livestock on subject lands, or were engaged in business operations in subject area at that time, discussing with such persons the physical characteristics of subject lands, their carrying capacity as of 1905, and general economic conditions prevailing at about that time.
60. The data and information produced by field inspection of the lands, by documentary research, and by interviews with persons acquainted with the subject area in 1905 were then classified, organized, and analyzed by Mr. Bowes with *46 the assistance of Mr. Mahaffey and Mr. David L. Montonna, and prepared for presentation and report in the way of narrative report, charts, tables, and maps. The investigation, research, analysis, and preparation of the appraisal report involved 421 man-days of work.
61. Mr. Bowes’ knowledge of the physical characteristics, economic environment, and economic use of the subject lands as of 1905 was substantially in accord with the preceding findings of fact covering such subject matters.
62. Mr. Bowes and his associates under his supervision made an extensive investigation of purchases and sales of summer grazing lands located within the Uintah Basin, in areas surrounding and adjacent to the subject area, and elsewhere in the states of Utah, Colorado, and New Mexico, limiting the transactions generally to those occurring in the period between 1895 and 1915.
They obtained from county recorders, from abstract and title companies, and from interviews with individuals, information involving some 1,000 transactions appearing to them to be free market sales of comparable grazing lands. These transactions were analyzed and screened with the object of eliminating obvious family transactions and other transactions where the consideration was not mentioned in the deed and could not be otherwise verified by interviews with persons involved, or where the consideration may have been affected by abnormal factors. The lands involved in' the remaining transactions were inspected to eliminate cultivated and irrigated lands, lands with extensive improvements, and lands not generally comparable in terms of cover-type, economic use, economic environment, elevation, and precipitation. The remaining areas were then mapped and inspected for cover type classification, based upon personal inspection and upon official type maps by the Forest Service, the Grazing Service, the Bureau of Land Management, and the Soil Conservation Service. After all eliminations, there remained 442 transactions which Mr. Bowes considered to be sufficiently comparable to give a reliable indication of value. Wherever possible, parties or persons otherwise having knowledge of the transactions were interviewed to confirm *47 the data derived by the investigation process. Because of the early date of-many of these transactions, confirmation could not be obtained from parties to a substantial number of the transactions, but all of the 442 transactions selected by Mr. Bowes for comparison and analysis were either confirmed in some manner to his satisfaction, or were adequately recorded in the deed in such a manner and under such circumstances to satisfy Mr. Bowes as to the reliability of the data contained therein.
63. In order to relate the varying physical and economic characteristics of these transactions more precisely to valuation of subject lands as of 1905, Mr. Bowes classified these 442 transactions into three groups, as follows: (1) 12 private sales involving large tracts of mountain grazing land, located in Utah and New Mexico at varying distances from the subject area; (2) 210 private transactions involving sales of small areas of grazing lands in six counties adjacent to or bordering subject area; and (3 ) 220 private transactions involving sales of small areas of mountain grazing lands, elsewhere in Utah and in western Colorado.
64. Included among the 442 private sales considered by Mr. Bowes were 12 sales involving relatively large areas of land, ranging from 6,252 to 99,289 acres. Because of their size, their plottage value for grazing use, and their inclusion of all types of cover found upon subject lands, Mr. Bowes considered these sales as giving the most reliable indication to the 1905 market value of subject lands.
65. Included among the 12 large sales known to Mr. Bowes were nine sales concerning which plaintiffs adduced testimony of witnesses in verification of the nature and amount of property involved and consideration paid. These nine sales are described in this finding.
One transaction, verified by the testimony of a stockholder of the grantee company, who was the person in direct charge of grazing operations on the lands before and after the sale, involved 17,199 acres of land sold in 1911 for $137,-500, located adjacent to the La Sal National Forest in San Juan County, Utah, about 114 airline-miles from the south arm of subject lands. The land ranges in elevation from *48 8,000 to 10,000 feet and bas precipitation of from 25 to 35 inches per year. The area is rolling in character with some steep portions, with relatively less steep and inaccessible areas than subject lands. Two creeks running through the area supply water comparable to the well watered areas of subject lands. Cover-types on this area are comparable to cover-types found in subject area, including aspen with interspersed areas of grassland, mountain browse, and coniferous timber. The land is generally comparable to the better portions of subject lands and had a carrying capacity of about two acres per animal unit month based upon actual experience in 1905. Some fencing, one sheep corral, and a summer cabin were on the land at the time of purchase, reasonably valued at about $9,500, leaving an average price for the unimproved land of $7.44 per acre.
Six of the large sales are located within a large Spanish land-grant area known as the Tierra Amarilla in Rio Arriba County, New Mexico, and are adjacent to or near the Carson National Forest. These sales are located adjacent to or near the northern boundary of New Mexico from 105 to 140 miles east of the southeastern corner of Utah, averaging in distance about 294 airline-miles from the south arm of subject lands. Arlington Land Company was the grantor in each transaction. The confirming witness for each transaction was and had been an agent for the grantor since 1916, after the transactions in question, was thoroughly familiar with the nature and extent of the lands involved, but with respect to considerations paid, stated that the policy of the grantor company was to recite correctly the considerations in its deeds involving parts of the Tierra Amarilla grant because of the fact that there existed an overall trust on the entire grant which would have to be released in part as consideration was paid on the sale of a part thereof. Each deed on these six transactions is in evidence, limited by the offer of the plaintiffs “not as independent evidence of the consideration recited therein.” Mr. Bowes’ sources of information for the considerations were the deeds and an interview with the confirming witness. The acreages, dates, and purchase price of these sales were as follows:
*49
All of these lands were unimproved and were purchased for grazing purposes. They were summer grazing lands with a grazing season comparable to subject lands, ranging in elevation from 7,500 to 10,000 feet and receiving annual precipitation of from 20 to 35 inches. The cover on these lands was comparable to the cover found in areas of subject land, being characterized by sagebrush, aspen, coniferous timber with grasslands interspersed, and some meadow land. There were within these sales areas of waste timber, barren outcroppings of rock, and steep, rocky, and inaccessible canyons, comparable to some of the waste areas found in the north arm of subject lands. Some stands of commercial timber more valuable than the timber resources on subject lands were found on these New Mexico sales at the time of the transaction, but in all such instances the timber rights were reserved to the grantor. Each tract either was crossed by or was in close proximity to a railroad. The grazing capacity of these lands was between five and six acres per animal unit month.
Two of the nine large sales involved the same tract of land, 15,020 acres located approximately 10 miles northeast of Las Vegas, New Mexico, and 414 airline-miles from the south arm of subject lands, sold in 1905 and resold in 1907. The-two deeds are in evidence on plaintiff’s conditional offer as not being independent evidence as to the considerations recited therein. The 1905 deed recited that Alphonso Hart, the grantee, was an attorney who had rendered legal services for the town of Las Vegas in perfecting its title to a Spanish grant which included the land conveyed, and had made claim for a fee of $40,000. This deed further recited that the conveyance was made in recognition of the “validity and justness” of the claim. The conditions of this 1905 sale *50 were confirmed in the testimony of Albert T. Eogers, who acted as attorney for Mr. Hart to collect his claimed fee. He testified that the pertinent tract was conveyed in full settlement of the $40,000 claim. The 1907 deed, received in evidence upon the same conditional offer of plaintiffs, was a conveyance of the same lands by Mr. Hart to one Morley, with the consideration recited therein as $10. Mr. Bowes testified that the actual consideration was $45,060, which amount was substantially confirmed by Mr. Eogers in that he had been consulted by Mr. Hart concerning the transaction and advised by Mr. Hart and the grantee and his attorney that $45,000 was the consideration. The land was used for grazing and there were no improvements on it at the time of these transactions, although the land was of such nature that Morley subdivided the tract a year or two after his purchase, and some dry farming projects were established thereon. The tract ranges in elevation from 6,700 to 7,000 feet with annual precipitation of about IS to 17 inches. It had a carrying capacity of three acres per animal unit month. The cover was primarily sagebrush and grassland, with the higher elevations carrying a sparse cover of pinon-juniper. The terrain was relatively level, but gently sloping in the areas covered with brush and pinon-juniper. The 1905 and 1907 sales prices of $40,000 and $45,060 averaged respectively $2.66 and $3.00 per acre.
66. In addition to the nine large sales, concerning which confirming witnesses were called by plaintiffs, Mr. Bowes had knowledge of three additional large sales of unimproved mountain grazing land in Colorado and New Mexico, which he took into consideration in formulating his opinion. The first of these was a transaction between the Costilla Estates Development Company and the Adams Cattle Company which, according to Bowes, involved the sale of 68,000 acres of unimproved mountain grazing land in Taos County, New Mexico, in the year 1911, for a price of $170,000, or an average of $2.50 per acre. The land involved, located adjacent to the north boundary of New Mexico about 175 miles east of the southeast corner of Utah, and about 366 airline-miles from the north arm of subject lands, was summer grazing land in the Sangre de Cristo Mountains, ranging in eleva *51 tion from 8,000 to 12,800 feet, and receiving from 20 to 40 inches of precipitation annually. It had a combination of almost every cover type found upon subject lands, with the higher elevations containing steep and rocky river canyons. The carrying capacity was three acres per animal unit month.
The second was a transaction in 1909 between Valles Land Company and the Bedondo Development Company, which Mr. Bowes’ investigation disclosed involved the sale of 99,289 acres of unimproved mountain grazing land in Sandoval and Bio Arriba Counties in New Mexico, located 40 to 45 miles north of Albuquerque and about 342 airline-miles from the south arm of subject lands, for a consideration of $297,512, or an average of $3 per acre. The land was excellent summer grazing range, located at elevations from 8,200 to 11,250 feet, with precipitation of about 30 to 40 inches per year. It was characterized by grass, meadow, sage, browse, and coniferous timber, and had an estimated carrying capacity of two acres per animal unit month, being exceptionally good grazing land.
The third of these transactions was in 1907 between the San Luis Valley Land and Mining Company and Lipencott, which, according to Bowes, involved the sale of 99,289 acres of mountain grazing land in the San Luis Valley, located in south central Colorado about 294 airline-miles from the north arm of subject lands, for a total consideration of $550,000, including $75,000 worth of improvements, leaving $475,000 for the unimproved land, or $4.78 per acre. The land varied sharply in elevation, rising from a valley floor at 8,000 feet to the top of the Sangre de Cristo range at .about 14,000 feet. Much of the land in the higher elevation was steep and rocky. Some of it was entirely unsuitable for grazing. It had grass, sage, browse, coniferous timber, and some pinon-juniper and aspen cover, with an estimated carrying capacity of three and one-half acres per animal unit month.
67. The 12 large sales testified to by Mr. Bowes as a basis for his opinion involved some 402,623.8 acres of land for a total consideration of $1,334,457.50, or an average of $3.31 per acre. The nine sales in this category, concerning which confirming witnesses testified, involved a total area of 136,- *52 045.8 acres, for a total consideration of $891,945.50, or an average of $2.88 per acre.
For the purpose of relating the price paid for each one of the 12 large tracts to the value of the subject lands, three adjustments were made by Mr. Bowes. The first adjustment concerned the date of each sale in relation to the valuation year, 1905. In this connection, Mr. Bowes relied upon statistics derived from publications of the United States Department of Commerce providing national economic in-dices for each of the years 1890 through 1915, covering general price index of commodities, farm products, cattle per head, sheep per head, horses per head, steers per cwt., and lambs per cwt. Considering that a combination of all these-indices was important with respect to the valuation of subject lands, he computed the average of these indices for each of the years covered. Each price index and the average of all indices for each year were adjusted so that the year 1905 was represented by the figure 100. Using the related average of all indices for the year of each sale, as compared with the average of all indices for 1905, Mr. Bowes employed a time adjustment factor with respect to the per acre price of each sale. For example, the first above-mentioned of the 12 large sales (see finding 65) took place in the year 1911. The average of all indices for the year 1911 was computed by Mr. Bowes at 125, as compared with the base year of 1905 at 100. The time factor used on this sale was 80 percent and the $7.44 price per acre on that sale was thus reduced to $5.95. Each of the 12 sales was adjusted accordingly, except the 1905 sale, and the time factor adjustments ranged from 72 percent to 86 percent.
The second adjustment made by Mr. Bowes was for the purpose of further relating the per acre price on each of the 12 large sales on the basis of the relative size of the tract compared to the 973,777 acres of subject lands. Mr. Bowes conceded that a tract as large as subject lands would be more difficult to sell than tracts the size of the 12 large sales. With respect to the same one of the 12 large Sales used as an example on the first adjustment, the readjusted price of $5.95 was reduced by a size factor of 90 percent to $5.36. Each of the 12 large sales was adjusted by a size factor of *53 90 percent, except the three set forth in finding 66 on which the size factor adjustment was 95 percent.
The third adjustment made by Mr. Bowes concerned relative carrying capacity. The carrying capacity of the example tract was two acres per animal unit month, as stated in finding 65, whereas the carrying capacity of subject lands was 5.43 acres per animal unit month, and 2.715 times as much of the subject land was required to carry one animal unit month as was required of the example tract. Consequently, the carrying capacity of subject lands was 36.8 percent of that of the example tract. The re-adjusted price of $5.36 on the example tract was further adjusted by this carrying capacity factor of 36.8 percent to the sum of $1.97 as applicable to the subject lands. The six Tierra Amarilla tracts were considered by Mr. Bowes to be equivalent in carrying capacity to the subject lands and no carrying capacity factor was applied to them. One other of the large tracts was adjusted by a carrying capacity factor of 36.8 percent, three were adjusted to 55.2 percent, and one to 64.5 percent.
Based on these analyses, Mr. Bowes arrived at an indicated value of $1.43 per acre, on the average, for subject lands in 1905, which indication was not expressed as an independent opinion of value but was correlated with value indications from all other sources in arriving at a final conclusion of value. By eliminating the sale with the highest price per acre and also the one with the lowest price per acre, Mr. Bowes by the same method arrived at a value indication of $1.38 per acre for subject lands. Mr. Bowes’ adjustments on the nine large sales, concerning which confirming witnesses testified, result in an average 1905 value indication for subject lands in the sum of $1.42 per acre.
68. Included among the 442 private transactions which Mr. Bowes took into consideration in arriving at his final opinion of value, were 210 private transactions involving sales of areas of grazing land in five counties bordering the subject area which sales were referred to by Bowes as his “small sales close.” According to Mr. Bowes’ information, these transactions involved a total of 114,290 acres, in 210 sales, for a total consideration of $331,114 (after deduc *54 tions for improvements, where present), or an average consideration of $2.90 per acre. The sales took place between the years 1882 and 1915, with the exception of two in 1916 and one in 1917. In location they ranged from immediately adjacent to portions of subject lands to a distance of 80 miles from subject area. The data considered by Mr. Bowes-included 109 sales in Wasatch County, 19 prior to 1906, and 90 in the years 1906 through 1915, involving 50,809 acres for a total consideration of $156,678, or an average of $3.11 per acre; 61 transactions in Duchesne County, all in the years 1910 through 1915, involving a total of 48,078 acres, for a total consideration of $101,531, or an average of $2.11 per acre; 10 transactions in Uintah County, all in the years 1907 through 1917, involving a total of 3,939 acres for a total consideration of $15,510, or an average of $3.94 per acre; and 30 transactions in Carbon and Sanpete Counties, 11 prior to 1906 and 19 in the years 1906 through 1916, involving 11,964 acres for a total consideration of $57,395, or an average of $4.80 per acre. The average size of all sales in this category, as taken into consideration by Mr. Bowes, was 544 acres.
69. The lands involved in these 210 private sales close to subject lands, considered by Mr. Bowes, were distributed in northeastern Utah, varying in elevations from 6,000 to-10,000 feet. All kinds of cover found upon subject lands were also found upon these 210 private sales, except that the private lands did not involve comparable stands of lodge-pole pine and had few barren and inaccessible areas. Subject lands were higher and had generally more precipitation and better water resources than the land involved in this category. Large areas of subject lands produced better forage and had better grazing resources, but considered as a whole, Mr. Bowes estimated that the private lands had a substantially higher average carrying capacity because of the inclusion of relatively less barren and inaccessible land.
In his analysis of the transactions in this category, Mr. Bowes concluded that no adjustment was warranted for the differences in size, on the basis of his opinion that the lack of assemblage value in the small private sales was sufficient to offset any dimunition of value attributable to the whole *55 sale size of subject area. In Bowes’ opinion no adjustment for time factor was warranted, inasmuch as Ms analysis of the sales prior to 1906 in this category showed a slightly higher average than the sales after that date. Of the 210 transactions, 30 occurred before 1906. To adjust for the greater accessibility and higher average carrying capacity of the private lands, Bowes applied the $2.90 average from the private lands to the 486,889 acres of subject lands best suited for grazing, which included 74,493 acres of grassland, 29,213 acres of sagebrush, 107,015 acres of mountain browse, and 276,168 acres of aspen and other woodland, as enumerated in finding 35. Mr. Bowes then added 50 cents per acre as an allowance for the 331,084 acres of coniferous timber land, and attributed no value to the 155,804 acres of barren and inaccessible land. The resulting value indication was $1.62 per acre. After Mr. Bowes’ appraisal report had been completed and submitted, Mr. Bowes discovered inaccuracies in some 13 of the 210 transactions, either contained in the information provided by an abstract company, or as revealed in the testimony of confirming witnesses. Correction of these inaccuracies resulted in a mathematical difference of one cent per acre in this indication of value, and Mr. Bowes testified that this change did not alter his final opinion of the value of subject lands.
Based upon Bowes’ estimate of an average carrying capacity of 3.3 acres per animal unit month, purchasers of these private lands paid an average of $9.81 per animal unit month of carrying capacity in their lands. Application of tMs data to the 181,000 animal unit months available on subject land gave Bowes an alternative indication of $1.80 per acre for the 1905 market value of subject lands. These indications were not used by Mr. Bowes as independent conclusions of value, but were correlated with indications derived from other sources of data in arriving at his final opinion of value.
70. Testimony of confirming witnesses was adduced by plaintiffs concerning 68 private sales, nearly all of which were included within Mr. Bowes’ 210 private sales close to subject lands. Of the 68 such transactions, six are eliminated from this finding because the testimony was -uncertain as to the consideration paid, leaving 62 sales, 44 of which were *56 in Wasatcb County, 14 in Duchesne County, 3 in Uintah County, and 1 in Sanpete County. The 62 sales aggregated 43,270.44 acres, or an average of 698 acres per sale, for a total .consideration of $121,547.16, or an average of $2.81 per acre.
Concerning the 44 sales in Wasatch County, 8 of which .are supported by deeds in evidence, these transactions occurred : 3 in 1900; 5 in 1905; 2 in 1907; 3 in 1910; 4 in 1911; 10 in 1912; 5 in 1913; 2 in 1914; and 10 in 1915. The total •acreage was 24,877.15, or an average of 565 acres per sale, for a total consideration of $75,540.86, or an average of $3.04 per acre.
Concerning the 14 sales in Duchesne County, 6 of which are supported by deeds in evidence, these transactions occurred during the years 1911 through 1915. The total acreage was 17,453.29, or an average of 1,247 acres per sale, for a total consideration of $42,866.30, or $2.46 per acre.
Concerning the three sales in Uintah County, all are supported by deeds in evidence and occurred during the years 1908,1915, and 1917. The total acreage was 780, or an average of 260 acres per sale, for a total consideration of $2,500, or $3.21 per acre.
The one sale in Sanpete County occurred in 1906, there being a supporting deed in evidence, and the acreage was 160 for a consideration of $640, or $4 per acre.
About two-thirds of the total acreage and most of the 44 sales in Wasatch County were located within the former Uintah Indian Reservation, in the areas adjacent to the eastern edges of the western part of subject lands, east of the Strawberry Valley withdrawal, and are closely comparable to the areas of subject lands which they adjoin, except that being at lower elevations t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8591713. Public record. Not legal advice.