Story v. Woolverton

MR. COMMISSIONER CALLAWAY prepared tbe following opinion for- tbe court: The plaintiffs and defendants were trying their respective titles to the waters of Bear creek, in Gallatin county, when the state of Montana, through the attorney general, intervened. Upon the trial, plaintiffs and defendants objected to the introduction of any evidence in support of the intervener’s complaint, on sevéral grounds. The court sustained the objection, and entered judgment against the intervener, from which it has appealed. It appears from the record that by an executive order of the president of the United States there was created on February 15, 1868, the military reservation of Fort Ellis, situated in Gallatin county, state of Montana; that said military reservation ■was created for the purpose of stationing soldiers of the United States government there; that it consisted of a large number of acres of land, and that a plat thereof was made, and its boundaries clearly defined; that the United States continued to use and occupy the same until July 26, 1886, when it was abandoned; that it became necessary to supply the reservation with water for domestic and irrigation purposes, and that the government, through its officer in charge, constructed a ditch sufficient to carry something over 200 inches of water from Bear Greek canyon to section 15, where the buildings on said reservation were situated, and where the intervener alleges the water was used for domestic purposes, and for the purpose of irrigating plats for gardens, and the raising of hay and other crops. The intervener further alleges that the government of the United States continued to use said water, and had its ditches and flumes in such condition that they would carry more than 200 inches of water onto said section 15, and continued to use said water from the time of its diversion up to the time the military reservation was abandoned in 1886. The record does not show that the water was not used on other portions of the reservation besides upon section 15. [353] On February 13, 1891, congress passed an Act to provide for tbe disposal of tbe abandoned Fort Ellis military reservation, in Montana, under the homestead law, and for other purposes. (26 Stat. 141.) The first section of the Act authorized the-secretary of the interior to cause the land embraced in the reservation to be surveyed. The second section reads as follows: “That there is hereby granted to the state of Montana one section of said reservation to be selected according to legal subdivisions so as to embrace the buildings and improvements thereon, to be used by the said state as a permanent militia camp ground, or for other public purpose in the discretion of the state legislature; provided that whenever the state shall cease to use said lands for public purposes the same shall revert to the United States.” Pursuant to this provision the state of Montana selected the ground upon which the buildings were situated, which included all of section 15, except 40 acres, and in lieu of this 40 selected 40 in the adjoining section 10. It is contended by the attorney general that congress granted to the state the ditch from Bear creek, together with the right to use 200 inches of the waters of said creek. Is the language employed in the foregoing section comprehensive enough to include a water right and ditch, as a part of the improvements upon said section ? It seems that both the plaintiffs and defendants, or some of them, own a portion of the land which was formerly a part of the military reservation, and they claim their water rights from Bear creek.' Prior to the time of settlement upon the lands in question, and prior to the appropriation of the waters of Bear creek by any one, both the land and the water were the property of the government. When the. government established the reservation, it owned both the land included therein, and all the water running in the various near-by streams to which it had not yielded title. It was therefore unnecessary for the government to “appropriate” the water. It owned it already. All it had to do was to take it and use it. When the government abandoned the military reservation, it also must have abandoned the use of the water thereon, which was again [354] allowed to flow in its regular channel as a part of the public domain, subject to the appropriation of any one who sought to take it. It appears affirmatively from the complaint in intervention that the government abandoned the reservation in 1886, and that it took no steps to dispose of it until the Act of February 13, 1891, was passed. The Act provides, as will be noticed, that the state is to select a section of land so as to embrace the buildings and improvements thereon. The word “embrace,” in the sense used, means “to inclose, as by surrounding or encircling; hence to take in; comprehend.” (Standard Dictionary.) The meaning of the section is made certain by the use of the word “thereon.” The rule is that if the language of a statute is plain and unambiguous, and expresses a single, definite and sensible meaning, it must be interpreted literally. (Black on the Interpretation of Laws, Sec. 26.) The language used is “the buildings and improvements thereon.” While the general rule is that the description in private grants is construed in favor of the grantee, the reverse is the rule with regard to public grants. This is upon the theory that the government is a trustee for the public, and therefore the language of a grant by the government is construed in favor of the grantor; i. e., the people. As said in Newton v. Commissioners, 100 U. S. 548, 25 L. Ed. 710: “No grant can be raised by mere inference or presumption, and the right granted must be clearly defined. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773, 938.” In speaking of a grant of public land, the court, in Dubuque & Pacific R. Co. v. Litchfield, 23 How. 66, 16 L. Ed. 500, said: “All grants of this description are strictly construed against the grantees. Nothing passes but what is conveyed in clear and explicit language.” And in Hannibal & St. Joseph R. Co. v. Missouri River Packet Co., 125 U. S. 260, 8 Sup. Ct. 874, 31 L. Ed. 731, the court said: “But if there be any doubt as to the proper construction of this statute — and we think there is none — then that construction must be adopted which is most advantageous to the inter [355] ests of the government. Tbe statute, being a grant of a privilege, must be construed most strongly in favor of the grantor. Gildart v. Gladstone, 12 East. 668, 675; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544, 9 L. Ed. 773, 938; Dubuque & Pacific Railroad v. Litchfield, 23 How. 66, 16 L. Ed. 500; The Binghamton Bridge, 3 Wall. 51, 75, 18 L. Ed. 137; Rice v. Railroad Co., 1 Black, 358, 380, 17 L. Ed. 147; Leavenworth, Lawrence & Galveston Railroad v. United States, 92 U. S. 733, 23 L. Ed. 634; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036.” Tbe question at once arises, if tbe water right was appurtenant to tbe reservation, was it appurtenant to tbe whole, or simply to that portion of it which tbe state of Montana selected? Tbe question cannot be answered from tbe record. Tbe only inference is that tHe government, when it abandoned tbe reservation, intended that tbe water should continue to flow in its natural channel, and to be subject to appropriation by any one who should take it and use it for beneficial purposes, possibly upon land included within tbe reservation. Had tbe government desired so to do, it could have granted tbe right to tbe use of tbe water in express terms, but this it did not do. Furthermore, it appears from tbe complaint in intervention that tbe ditch whereby tbe water was conveyed extends for a long distance beyond tbe confines of section 15 to tbe point where it taps Bear creek. Can it be said that the grant conveyed that portion of tbe ditch which is not upon section 15, when tbe language of tbe grant is tbe ^improvements thereon” ? Following out tbe rule that public grants must be construed in favor of tbe grantor, there can be no question but that tbe government did not grant to tbe state of Montana anything but that which is expressly mentioned, and therefore did not attempt to grant any right to tbe use of tbe waters of Bear creek. ■It follows that tbe judgment should be affirmed. Per Curiam. — For tbe reasons given in tbe foregoing opinion, tbe judgment is affirmed. [356] Mr. Justice Holloway, being disqualified, takes no part in this decision.