Story v. Woolverton

Public LandsJ-Grant by U. B. government to State — Construction of Grant — Right to the Use of Water. 1. A grant of public land must be construed in favor of tbe grantor. 2. The Act of Congress of February 13, 1891 (26 Statutes at Large, 748), granting to the state of Montana one section of land of an abandoned military reservation to be selected “so as to embrace the buildings and improvements thereon, to be used by the said state as a permanent militia camp ground,” did not grant any right to the use of water which the government had diverted from a stream and used upon the land granted for domestic and irrigation purposes necessary to a military encampment.

Appeal from District Court, Gallatin County; W. B. C. Stewart, Judge. Action by T. B. Story and others against W. W. Woolverton and others, and Angie Beynolds and the state intervened. From a judgment against the state as intervener, it appeals. The position of the appellant and intervener is that on February 5, 1868, the president of the United States had the right, and did, set aside certain lands for the purpose of the Fort Ellis military reservation; that as soon as the lands so set aside were occupied by the military forces, the military forces began the construction of buildings, and the use of Avater for the conveniences of the post; that from the particular stream from which it took its Avater, Bear Creek, the government of the United States had yielded no prior claim or right to any of these waters; that the waters were necessary for military, domestic and agricultural purposes at the fort, and were so used by the government up to the time the land was conveyed-to the state of Montana; that the paramount idea in the Act of 1891, February 13, was to grant to the state of Montana a portion of said military reservation for the purpose of a camp ground for the state militia; that the land was so conveyed for that particular use, and the particular piece of land that was conveyed was the land upon which the buildings were situated, so that the state might have a permanent place for a state militia camp ground; in this grant it conveyed everything that was essential to0carry out the purposes of the grant; the Avater was necessary and essential to perfect the purposes of the grant, and while the law does not expressly provide the conveyance of water, yet the grant itself carries with the land and buildings the water, just as much as it carries anything connected with the camp ground, and the grant carried with it sufficient water to put the ground in such shape that the intent and purpose of the grant should be fulfilled to the highest degree. It would be rather novel to say that the federal government made a grant of land to the state of Montana for the purposes of a military camp g'round, and in such a grant by its silence in reference to the water, excluded the water, which exclusion would amount to putting the grant in such condition as to defeat the intent and purposes of the grant. Such cannot be a fair construction of this grant. {Smith v. Denniff; 24 Mont. 20; Gave v. Grafts, 53 Oal. 140;' Philbricle v. Eiving, 97 Mass. 134; Mack’s Pomeroy on YVater Rights, ¡3. 98.) It is never contemplated in any federal, state or individual endowment, or gift, or conveyance, to make an endowment, grant, gift or conveyance, and then defeat the gift, grant, endowment or conveyance by withholding essentials and inseparable incidents or appurtenances of the gift, donation, conveyance or grant, which by such withholding would make the gift, conveyance, grant or endomnent worthless- or invaluable. If the question resolves itself into whether or not certain things are intended in a grant to go'with a gránt, the inquiry always is, where the act does not express and directly mention all the essentials, that the essentials go with it; otherwise the grant would be invaluable. It is only when there is an express exclusion of a beneficial appurtenance or incident in the grant that it can be said that the incident or appurtenance is excluded from the grant. It would be a strange construction of the Act of Congress of February 13, 1891, to say that the federal government conveyed to the state of Montana 640 acres of ground for a military camp ground, or to be used for other public purposes,. but that it excluded from the grant the use of any water that was previously used upon the ground, or that it did not convey the water by such grant but returned the water to the public so that it could be appropriated as against tbe state and the usefulness of the grant destroyed. The correct construction of said grant to the state of Montana is this: The federal government conveyed to the state of Montana 640 acres of ground to be selected by the agent of the state, and the use of everything was conveyed that was made use of by the federal government while it occupied the land that was granted, so long as the things that the government used were essential to the uses and purposes of the grant. This interpretation is reinforced by the language of the act itself, because in making the grant the federal government did not convey the land to the state of Montana because of the value of the land from a monetary point of view, or to add to the wealth of the land grants of the state, or to increase the treasury of the state of Montana, but for the express and limited purpose of a camp ground and for public purposes, reserving the right in congress to cancel the grant at any time when the purposes for which the grant was made were not being carried out. The purposes for which the grant was made cannot be carried out if the grant did not convey the water with the land. Suppose this was done, could it be then said that if the federal government forfeited the grant and desired to use the granted lands for federal military post again that the water that was essential to the maintenance of a military post upon this one section was lost to the federal government, and that it could not assert a right to the water ? The state of Montana having accepted the terms of .the grant, became vested with the title conveyed by said grant, and the state of Montana, having taken immediate possession, made its selection and occupied and used said grant as the terms of the grant directed, is entitled to the exclusive and peaceable possession of the land and sufficient water from Bear creek to make useful the land as the federal government intended it should be used. The federal government, being the owner of the water and the land, used the same from 1868 down to February 13, 1891, and had an uninterrupted use of the water until all that portion of the military reservation other than section 15 and forty acres in section 10 was thrown open to settlement and surveyed. The state of Montana took possession February 13, 1891, or immediately thereafter, and has, up to the present time, continued to occupy section 15 and forty acres in section 10, which it selected under the grant and has used the land for the purposes mentioned in the grant and the water to carry out the purposes of the grant. For thirty-six years the waters of Bear creek have been used by the federal and state governments-for public purposes as a branch of the federal and state governments. There has been no period of time since February 15, 1808, to the present time when the federal government relinquished any portion of the water that- was essential for military purposes at Fort Ellis, and there is no period of time from February 13, 1891, to the present when the state has failed to use the water for the purposes of the grant.- There has been an unbroken and uninterrupted possession in the federal and state governments to the waters of Bear creek for thirty-six years, against which no claim could be asserted by any private individual. The essential elements of a right of “appropriation” are a prior, continued and beneficial use of water. It is rights'to the use of water which by “priority of possession” have become vested under local customs and laws that are acknowledged and confirmed by the act of 1866. That act does not waive any right of the government to exercise the privileges of using the water of any stream which it may subject to a beneficial use. So long as the water of a stream is used by the government, or its successor in interest, no “priority of possession” thereof could be obtained by an individual, and, consequently, no right could be initiated so as to be entitled to recognition under said act. To be entitled to initiate a right of appropriation it is necessary only that the appropriator be in the possession of riparian land or of land to which he has a right of way for the necessary ditch from the stream. (Smith v. Denniffj, 24 Mont. 20.) There is no express restriction of the privilege of appropriation to individuals to the exclusion of the government or any other body politic; and it is insisted that, from the nature of the right, none conld fairly be implied. (Krall v. United States, 24 C. O. A. 543, 79 Fed. 241, 48 U. S. App. 351.) In the case of Smith v. Denniff, supra, this court, in an opinion by Mr. Justice Pigott, after making an exhaustive examination of the subject, concludes that where an owner of land acquires by appropriation or purchase a water right and uses the same on his land, the title to the water right, which he shows is appurtenant to the land, passes under a grant of the land unless expressly reserved in the deed. The complaint in intervention of the state of Montana alleges the continuous use by the government on the Fort Ellis reservation of the water appropriated by it in 1870 up to the time of the grant to the state of Montana. The right to its use was, therefore, appurtenant to the land, and, not being reserved from the grant, passed by it to the state of Montana. So long as the state of Montana remains in the, possession of the Fort Ellis reservation under its grant, it therefore will be in the position to enjoy all the rights of a tenant in fee simple. The effect of the qualifications attached to the grant, that said reservation shall be used as a militia camp ground or for such other uses as may be prescribed by the legislature, is that if such uses shall at any time cease, the government will be in a position to assert its reversionary right. Manifestly, however, these qualifications do no more than define what shall entitle the United States to assert its right of reversion, and do not constitute, so far as third persons are concerned, any limitation or restriction upon the use which may be made by the state of the Fort Ellis reservation. So far as the respondents in this case are concerned, it is immaterial what use the state is making of this land, so long as the United States does not interfere. (Bybee v. Oregon & Gal. B. B. Go., 139 U. S. 675; Schulenberg v. Harriman, 21 Wall. 44; Van Wych v. Xneavals, 106 U. S. 360.)