207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340

28 S.Ct. 207

207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340

(Cite as: 207 U.S. 564, 28 S.Ct. 207)

Supreme Court of the United States

HENRY WINTERS, John W. Acker, Chris Cruse,

Agnes Downs, et al., Appts.,

v.

UNITED STATES.

No. 158.

Argued October 24, 1907.

Decided January 6, 1908.

APPEAL from the United States Circuit Court

of Appeals for the Ninth Circuit to review a decree

which affirmed a decree of the Circuit Court for the

District of Montana, enjoining a diversion of the

waters of Milk river. Affirmed.

See same case below, 78 C. C. A. 546, 148

Fed. 684.

West Headnotes

Federal Courts 170B

451

170B Federal Courts

170BVII Supreme Court

170BVII(B) Review of Decisions of Courts

of Appeals

170Bk451 k. Appeal. Most Cited Cases

(Formerly 30k322)

Those defendants in a suit to enjoin the

diversion of water who have defaulted and against

whom a decree pro confesso has been entered, are

not necessary parties to an appeal from a decree

granting a permanent injunction taken by the

answering

defendants,

who

justified

by

counterrights and submitted those rights for

judgment. Decree (1906) 148 F. 684, 78 C.C.A.

546, affirmed.

Federal Courts 170B

451

170B Federal Courts

170BVII Supreme Court

Page 1

170BVII(B) Review of Decisions of Courts

of Appeals

170Bk451 k. Appeal. Most Cited Cases

(Formerly 30k323(2), 30k322)

All the defendants named in a bill to enjoin the

diversion of water need not join in an appeal from a

decree granting a permanent injunction, where the

bill does not necessarily imply concert of action or

union of interest, and the answer is joint and

several, and in effect avers separate rights,

interests, and action on the part of the defendants.

Decree (1906) 148 F. 684, 78 C.C.A. 546, affirmed.

Indians 209

189

209 Indians

209IV Real Property

209k188 Water Rights and Management

209k189 k. In General. Most Cited Cases

(Formerly 209k12)

A reservation of the waters of Milk river for

irrigation purposes in favor of the Indians on the

Fort Belknap reservation will be implied from the

agreement of May 1, 1888 (25 Stat. 113, c. 213), by

which the Indians, having the right to occupy and

use a large tract of arid lands, ceded to the United

States all those lands except a small tract set apart

as such reservation. (Mont. 1906) 148 F. 684, 78

C.C.A. 546, affirmed.

Indians 209

190

209 Indians

209IV Real Property

209k188 Water Rights and Management

209k190 k. Amount, Measure, and

Allowable Purposes. Most Cited Cases

(Formerly 209k12)

The reservation of the waters of Milk river for

irrigation purposes, implied in favor of the Indians

on the Fort Belknap reservation from the agreement

of May 1, 1888 (25 Stat. 113, c. 213), in which the

Indians ceded to the United States all their lands

except a small tract set apart as such reservation,

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28 S.Ct. 207

207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340

(Cite as: 207 U.S. 564, 28 S.Ct. 207)

was not repealed by the admission of Montana into

the Union by Act Feb. 22, 1889, c. 180, 25 Stat.

676, on an equal footing with the original states.

**210 *571 Messrs. Edward C. Day and James A.

Walsh for appellants.

*572 Assistant Attorney General Sanford,

Assistant Attorney General Van Orsdel. Solicitor

General Hoyt, *573 and Mr. A. C. Campbell for

appellee.

**208 Statement by Mr. Justice McKenna:

*565 This suit was brought by the United

States to restrain appellants and others from

constructing or maintaining dams or reservoirs on

the Milk river in the state of Montana, or in any

manner preventing the water of the river or its

tributaries from flowing to the Fort Belknap Indian

Reservation.

An interlocutory order was granted, enjoining

the defendants in the suit from interfering in any

manner with the use by the reservation of 5,000

inches of the water of the river. The order was

affirmed by the circuit court of appeals. 74 C. C. A.

666, 143, Fed. 740. Upon the return of the case to

the circuit court, an order was taken pro confesso

against five of the defendants. The appellants filed

a joint and several answer, upon which and the bill

a decree was entered making the preliminary

injunction permanent. The decree was affirmed by

the circuit court of appeals. 78 C. C. A. 546, 148

Fed. 684.

The allegations of the bill, so far as necessary

to state them, are as follows: On the 1st day of May

1888, a tract of land, the property of the United

States, was reserved and set apart ‘as an Indian

reservation as and for a permanent home and

abiding place of the Gros Ventre and Assiniboing

bands or tribes of Indians in the state (then

territory) of Montana, designated and known as the

Fort Belknap Indian Reservation.’ The tract has

ever since been used as an Indian reservation and as

Page 2

the home and abiding place of the Indians. Its

boundaries were fixed and defined as follows:

‘Beginning at a point in the middle of the main

channel of Milk river, opposite the mouth of Snake

creek; thence due south to a point due west of the

western extremity of the Little Rocky mountains;

thence due east to the crest of said mountains at

their western extremity, and thence following the

southern crest of said mountains to the eastern

extremity thereof; thence in a northerly direction in

a direct line to a point in the middle of the main

channel of Milk river opposite the mouth of

People's creek; thence up Milk river, in the middle

of the main channel thereof, to the place of

beginning.’

Milk river, designated as the northern boundary

of the *566 reservation, is a nonnavigable stream.

Large portions of the lands embraced within the

reservation are well fitted and adapted for pasturage

and the feeding and grazing of stock, and since the

establishment of the reservation the United States

and the Indians have had and have large herds of

cattle and large numbers of horses grazing upon the

land within the reservation, ‘being and situate along

and bordering upon said Milk river.’ Other portions

of the reservation are ‘adapted for and susceptible

of farming and cultivation and the pursuit of

agriculture, and productive in the raising thereon of

grass, grain, and vegetables,’ but such portions are

of dry and arid character, and, in order to make

them productive, require large quantities of water

for the purpose of irrigating them. In 1889 the

United States constructed houses and buildings

upon the reservation for the occupancy and

residence of the officers in charge of it, and such

officers depend entirely for their domestic,

culinary, and irrigation purposes upon the water of

the river. In the year 1889, and long prior to the

acts of the defendants complained of, the United

States, through its officers and agents at the

reservation, appropriated and took from the river a

flow of 1,000 miners' inches, and conducted it to

the buildings and premises, used the same for

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28 S.Ct. 207

207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340

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domestic purposes and also for the irrigation of

land adjacent to the buildings and premises, and by

the use thereof raised crops of grain, grass, and

vegetables. Afterwards, but long prior to the acts of

the defendants complained of, to wit, on the 5th of

July, 1898, the Indians residing on the reservation

diverted from the river for the purpose of irrigation

a flow of 10,000 miners' inches of water to and

upon divers and extensive tracts of land,

aggregating in amount about 30,000 acres, and

raised upon said lands crops of grain, grass, and

vegetables. And ever since 1889 and July, 1898, the

United States and the Indians have diverted and

used the waters of the river in the manner and for

the purposes mentioned, and the United States ‘has

been enabled by means thereof to train, encourage,

and accustom large numbers of Indians residing

upon the said reservation*567 to habits of industry

and to promote their civilization and improvement.’

It is alleged with detail that all of the waters of the

river are necessary for all those purposes and the

purposes for which the reservation was created, and

that in furthering and advancing the civilization and

improvement of the Indians, and to encourage

habits of industry and thrift among them, it is

essential and necessary that all of the waters of the

river flow down the channel uninterruptedly and

undiminished **209 in quantity and undeteriorated

in quality.

It is alleged that, ‘notwithstanding the riparian

and other rights' of the United States and the

Indians to the uninterrupted flow of the waters of

the river, the defendants, in the year 1900,

wrongfully entered upon the river and its tributaries

above the points of the diversion of the waters of

the river by the United States and the Indians, built

large and substantial dams and reservoirs, and, by

means of canals and ditches and water ways, have

diverted the waters of the river from its channel,

and have deprived the United States and the Indians

of the use thereof. And this diversion of the water,

it is alleged, has continued until the present time, to

the irreparable injury of the United States, for

which there is no adequate remedy at law.

Page 3

The allegations of the answer, so far as

material to the present controversy, are as follows:

That the lands of the Fort Belknap Reservation

were a part of a much larger area in the state of

Montana, which, by an act of Congress, approved

April 15, 1874 [18 Stat. at L. 28, chap. 96], was set

apart and reserved for the occupation of the Gros

Ventre, piegan, Blood, Blackfeet, and River Crow

Indians, but that the right of the Indians therein

‘was the bare right of the use and occupation

thereof at the will and sufferance of the government

of the United States.’ That the United States, for the

purpose of opening for settlement a large portion of

such area, entered into an agreement with the

Indians composing said tribes, by which the Indians

‘ceded, sold, transferred, and conveyed’ to the

United States all of the lands embraced in said area,

except Fort Belknap Indian Reservation, *568

described in the bill. This agreement was ratified by

an act of Congress of May 1, 1888 [25 Stat. at L.

113, chap. 213], and thereby the lands to which the

Indians' title was thus extinguished became a part

of the public domain of the United States and

subject to disposal under the various land laws,

‘and it was the purpose and intention of the

government that the said land should be thus

thrown open to settlement, to the end that the same

might be settled upon, inhabited, reclaimed, and

cultivated, and communities of civilized persons be

established thereon.’

That the individual defendants and the

stockholders of the Matheson Ditch Company and

Cook's Irrigation Company were qualified to

become settlers upon the public land and to acquire

title thereto under the homestead and desert land

laws of the United States. And that said

corporations were organized and exist under the

laws of Montana for the purpose of supplying to

their said stockholders the water of Milk river and

its tributaries, to be used by them in the irrigation

of their lands.

That the defendant the Empire Cattle Company

is a corporation under the laws of Montana, was

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28 S.Ct. 207

207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340

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legally entitled to purchase, and did purchase, from

those who were qualified to acquire them under the

desert and homestead land laws of the United

States, lands on the Milk river and its tributaries,

and is now the owner and holder thereof.

That the defendants, prior to the 5th day of

July, 1898, and before any appropriation, diversion,

or use of the waters of the river or its tributaries

was made by the United States or the Indians on the

Fort Belknap Reservation, except a pumping plant

of the capacity of about 250 miners' inches, without

having notice of any claim made by the United

States or the Indians that there was any reservation

made of the waters of the river or its tributaries for

use on said reservation, and believing that all the

waters on the lands open for settlement as aforesaid

were subject to appropriation under the laws of the

United States and the laws, decisions, rulings, and

customs *569 of the state of Montana, in like

manner as water on other portions of the public

domain, entered upon the public lands in the

vicinity of the river, made entry thereof at the

United States land office, and thereafter settled

upon, improved, reclaimed, and cultivated the same

and performed all things required to acquire a title

under the homestead and desert land laws, made

due proof thereof, and received patents conveying

to them, respectively, the lands in fee simple.

That all of said lands are situated within the

watershed of the river, are riparian upon the river

and its tributaries, but are arid and must be irrigated

by artificial means to make them inhabitable and

capable of growing crops.

That for the purpose of reclaiming the lands,

and acting under the laws of the United States and

the laws of Montana, the defendants, respectively,

posted upon the river and its tributaries, at the

points of intended diversion, motices of

appropriation, stating the means of diversion and

place of use, and thereafter filed in the office of the

clerk and recorder of the county wherein the lands

were situated a copy of the notices, duly verified,

and within forty days thereafter commenced the

Page 4

construction of ditches and other instrumentalities,

and completed them with diligence, and diverted,

appropriated, and applied to a beneficial use more

than 5,000 miners' inches of the waters of the river

and its tributaries, of 120 cubic feet per second,

irrigating their lands and paoducing hay, grain, and

other crops thereon. The defendants and the

stockholders of the defendant corporations have

expended many thousands of dollars in constructing

dams, ditches, and reservoirs, and in improving said

lands, building fences and other structures,

establishing schools, and constructing highways

and other improvements usually had and enjoyed in

a civilized community, and that the only supply of

water to irrigate the lands is from Milk river. If

defendants are deprived of the waters their lands

cannot be successfully cultivated, and they will

become useless and homes cannot be maintained

thereon.

That there are other lands within the watershed

of the *570 Milk river and its tributaries, and

dependent upon its waters for irrigation, upon

which large numbers of persons have settled under

the land laws of the United States, and are irrigating

and cultivating the same by means of said waters,

and have assisted the defendants ‘in establishing a

civilized community in said country and in building

and maintaining churches, schools, villages, and

other elements and accompaniments of civilization;

that said communities consist of thousands of

people, and, if the claim of the United States and

the Indians be maintained, the lands of the

defendants and the other settlers will be rendered

valueless, the said communities will be broken up,

and the purpose and object of the government in

opening said lands for settlement will be wholly

defeated.’

It is alleged that there are a large number of

springs on the reservation and several streams from

which water can be obtained for stock and

irrigation purposes, and particularly these: People

creek, flowing about 1,000 inches of water; Big

Horn creek, flowing about 1,000 inches; Lodge

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28 S.Ct. 207

207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340

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Pole creek, flowing about 600 inches of water;

Clear creek flowing about 300 inches. That all of

the waters of these streams can be made available

for use upon the reservation, and that it was not the

intention of the government to reserve any of the

waters of Milk river or its tributaries. That the

respective claims of the defendants to the waters of

the river and its tributaries are prior and apramount

to the claims of the United States and the Indians,

except as to 250 inches used in and around the

agency buildings, and at all times there has been

sufficient water flowing down the river to more

than supply these 250 inches.

And it is again alleged that the waters of the

river are indispensable to defendants, are of the

value of more than $100,000 to them, and that if

they are deprived of the waters ‘their lands will be

ruined, it will be necessary to abandon their homes,

and they will be greatly and irreparably damaged,

the extent and amount of which damage cannot now

be estimated, but will greatly exceed $100,000,’

and that they will be wholly without remedy if the

claim of the United States and the Indians be

sustained.

*574 Mr. Justice McKenna delivered the opinion

of the court:

A question of jurisdiction is presented by the

United States. Five of the defendants named in the

bill failed to answer and a decree pro confesso was

taken against them. The other defendants,

appellants here, after the affirmance by the circuit

court of appeals of the interlocutory injunction,

filed a joint and several answer. On this answer and

the bill the case was heard and a decree entered

against all of the defendants. From that decree the

appellants here appealed to the circuit court of

appeals without joining therein the other five

defendants. The contention is that the circuit court

of appeals had no jurisdiction and that this court

has none, because the five defaulting defendants

had such interest in the case and decree that they

should have joined in the appeal, or proceedings

should have been taken against them in the nature

Page 5

of summons and severance or its equivalent.

The rule which requires the parties to a

judgment or decree to join in an appeal or writ of

error, or be detached from the right by some proper

proceeding, or by their renunciation, is firmly

FN†

established.

But the **211 the rule only applies

FN†

to joint judgments or decrees.

In other words,

when the interest of a defendant*575 is separate

from that of other defendants he may appeal

without them. Does the case at bar come within the

rule? The bill does not distinguish the acts of the

defendants, but it does not necessarily imply that

there was between them, in the diversion of the

waters of Milk river, concert of action or union of

interest. The answer to the bill is joint and several,

and in effect avers separate rights, interests, and

action on the part of the defendants. In other words,

whatever rights were asserted or admission of acts

done by any one defendant had no dependence

upon or relation to the acts of any other defendant

in the appropriation or diversion of the water. If

trespassers at all, they were separate trespassers.

Joinder in one suit did not necessarily identify

them. Besides, the defendants other than appellants

defaulted. A decree pro confesso was entered

against them and thereafter, according to equity

rule 19, the cause was required to proceed ex parte

and the matter of the bill decreed by the court.

Thomson v. Wooster, 114 U. S. 104, 29 L. ed. 105,

5 Sup. Ct. Rep. 788. The decree was in due course

made absolute, and granting that it might have been

appealed from by the defaulting defendants, they

would have been, as said in Thomson v. Wooster,

absolutely barred and precluded from questioning

its correctness, unless, on the face of the bill, it

appeared manifest that it was erroneous and

improperly granted. Their rights, therefore, were

entirely different from those of the appellants; they

were naked trespassers, and conceded by their

default the rights of the United States and the

Indians, and were in no position to resist the prayer

of the bill. But the appellants justified by counter

rights and submitted those rights for judgment.

There is nothing, therefore, in common between

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(Cite as: 207 U.S. 564, 28 S.Ct. 207)

appellants and the other defendants. The motion to

dismiss is denied and we proceed to the merits.

FN† Williams v. Bank of United States,

11 Wheat. 414, 6 L. ed. 508; Owings v.

Kincannon, 7 Pet. 399, 8 L. ed. 727;

Wilson v. Life & F. Ins. Co. 12 Pet. 140, 9

L. ed. 1032; Mussina v Cavazos, 6 Wall.

355, 18 L. ed. 810; Masterson v. Herndon

(Masterson v. Howard) 10 Wall. 416, 19 L.

ed. 953; Hampton v. Rouse, 13 Wall. 187,

20 L. ed. 593; Simpson v. Greeley, 20

Wall. 152, 22 L. ed. 338, Feibelman v.

Packard, 108 U. S. 14, 27 L. ed. 634, 1

Sup. Ct. Rep. 138; Estis v. Trabue, 128 U.

S. 225, 230, 32 L. ed 437, 438, 9 Sup. Ct.

Rep. 58; Mason v. United States, 136 U. S.

581, 34 L. ed. 545, 10 Sup. Ct. Rep. 1062;

Dolan v. Jennings, 139, U. S. 385, 35 L.

ed. 217, 11 Sup. Ct. Rep. 584; Hardee v.

Wilson, 146 U. S. 179, 36 L. ed. 933, 13

Sup. Ct. Rep. 39; Inglehart v. Stansbury,

151 U. S. 68, 38 L. ed. 76, 14 Sup. Ct.

Rep. 237; Davis v. Mercantile Trust Co.

152 U. S. 590, 38 L. ed. 563, 14 Sup. Ct.

Rep. 693; Beardsley v. Arkansas & L. R.

Co. 158 U. S. 123, 127, 39 L. ed. 919, 921,

15 Sup. Ct. Rep. 786; Wilson v. Kiesel,

164 U. S. 248, 41 L. ed. 422, 17 Sup. Ct.

Rep. 124.

FN† Todd v. Daniel, 16 Pet. 521, 523, 10

L. ed. 1054, 1055; Germain v. Mason, 12

Wall. 259, 20 L. ed. 392; Forgay v.

Conrad, 6 How. 201, 12 L. ed. 404;

Brewster v. Wakefield, 22 How. 118, 129,

16 L. ed. 301, 304; Milner v. Meek, 95 U.

S. 252, 24 L. ed. 444; Basket v. Hassell,

107 U. S. 602, 608, 27 L. ed. 500, 502, 2

Sup. Ct. Rep. 415; Hanrick v. Patrick, 119

U. S. 156, 30 L. ed. 396, 7 Sup. Ct. Rep.

147; City Nat. Bank v. Hunter, 129 U. S.

557, 32 L. ed. 752, 9 Sup. Ct. Rep. 346;

Gilfillan v. McKee, 159 U. S. 303, 40 L.

ed. 161, 16 Sup. Ct. Rep. 6.

Page 6

The case, as we view it, turns on the agreement

of May, 1888, resulting in the creation of Fort

Belknap Reservation. In the construction of this

agreement there are certain elements to *576 be

considered that are prominent and significant. The

reservation was a part of a very much larger tract

which the Indians had the right to occupy and use,

and which was adequate for the habits and wants of

a nomadic and uncivilized people. It was the policy

of the government, it was the desire of the Indians,

to change those habits and to become a pastoral and

civilized people. If they should become such, the

original tract was too extensive; but a smaller tract

would be inadequate without a change of

conditions. The lands were arid, and, without

irrigation, were practically valueless. And yet, it is

contended, the means of irrigation were deliberately

given up by the Indians and deliberately accepted

by the government. The lands ceded were, it is ture,

also arid; and some argument may be urged, and is

urged, that with their cession there was the cession

of the waters, without which they would be

valueless, and ‘civilized communities could not be

established thereon.’ And this, it is further

contended, the Indians knew, and yet made no

reservation of the waters. We realize that there is a

conflict of implications, but that which makes for

the retention of the waters is of greater force than

that which makes for their cession. The Indians had

command of the lands and the waters,-command of

all their beneficial use, whether kept for hunting,

‘and grazing roving herds of stock,’ or turned to

agriculture and the arts of civilization. Did they

give up all this? Did they reduce the area of their

occupation and give up the waters which made it

valuable or adequate? And, even regarding the

allegation of the answer as true, that there are

springs and streams on the reservation flowing

about 2,900 inches of water, the inquiries are

pertinent. If it were possible to believe affirmative

answers, we might also believe that the Indians

were awed by the power of the government or

deceived by its negotiators. Neither view is

possible. The government is asserting the rights of

the Indians. But extremes need not be taken into

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Page 7

account. By a rule of interpretation of agreements

and treaties with the Indians, ambiguities occurring

will be resolved from the standpoint of the Indians.

And the rule *577 should certainly be applied to

determine between two inferences, one of which

would support the purpose of the agreement and the

other impair or defeat it. On account of their

relations to the government, it cannot be supposed

that the Indians were alert to exclude by formal

words every inference which might militate against

or defeat the declared purpose of themselves and

the government, even if it could be supposed that

**212 they had the intelligence to foresee the

‘double sense’ which might some time be urged

against them.

the power to change to new ones.

Another contention of appellants is that if it be

conceded that there was a reservation of the waters

of Milk river by the agreement of 1888, yet the

reservation was repealed by the admission of

Montana into the Union, February 22, 1889, ‘upon

an equal footing with the original states.’ The

language of counsel is that ‘any reservation in the

agreement with the Indians, expressed or implied,

whereby the waters of Milk river were not to be

subject of appropriation by the citizens and

inhabitants of said state, was repealed by the act of

admission.’ But to establish the repeal counsel rely

substantially upon the same argument that they

advance against the intention of the agreement to

reserve the waters. The power of the government to

reserve the waters and exempt them from

appropriation under the state laws is not denied,

and could not be. United States v. Rio Grande Dam

& Irrig. Co. 174 U. S. 702, 43 L. ed. 1141, 19 Sup.

Ct. Rep. 770; United States v. Winans, 198 U. S.

371, 49 L. ed. 1089, 25 Sup. Ct. Rep. 662. That the

government did reserve them we have decided, and

for a use which would be necessarily continued

through years. This was done May 1, 1888, and it

would be exterme to believe that within a year

Congress destroyed the reservation and took from

the Indians the consideration of their grant, leaving

them a barren waste,-took from them the means of

continuing their old habits, yet did not leave them

U.S. 1908

Winters v. U. S.

207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340

Appellants' argument upon the incidental

repeal of the agreement by the admission of

Montana into the Union, and the power over the

waters of Milk river which the state thereby

acquired *578 to dispose of them under its laws, is

elaborate and able, but our construction of the

agreement and its effect make it unnecessary to

answer the argument in detail. For the same reason

we have not discussed the doctrine of riparian

rights urged by the government.

Decree affirmed.

Mr. Justice Brewer dissents.

END OF DOCUMENT

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