Slike strani
PDF
ePub
[ocr errors]

66

effect. Like the treaty reservation, the provisions of the act were in terms limited to the territory north of the · middle of the main channel" of the river.

One of the grazing reserves created under that act contained 400,000 acres, and the order setting it apart made the “mid channel of the river its southern boundary. That reserve came to be known as the Big Pasture, and was maintained until June 5, 1906, when Congress passed an act (c. 2580, 3+ Stat. 213) requiring that it be disposed of (a) by allotting in severalty to each child born into the tribes after the act of 1900 one hundred and sixty acres, and (b) by subjecting the remaining lands to particular modes of entry and sale and placing the proceeds in the Treasury to the credit of the tribes. Subsequent amendments made some changes, not material here, in the modes of entry and sale, and directed the use of a part of the proceeds in maintaining a hospital which was open to and used by the members of the tribes. The last amendment was made June 30, 1913, C. 4, § 17, 38 Stat. 77, 92.

The lands on the northerly bank of the river between the 98th meridian and the North Fork were all disposed of under the act of 1900, or that of 1906 and its amendments—some as Indian allotments, some through entries or purchases in the designated modes, and some under the grant to Oklahoma for school and other public purposes. The riparian claims are all founded on these disposals. The river bed there is from 1,500 to 6,600 feet wide between what are called the cut-banks.

The receivership area lies immediately south of what was the Big Pasture and has the same easterly and westerly limits.

One of the questions involved in the riparian claims relates to what was intended by the terms “ middle of the main channel and mid-channel used in defining the southerly boundary of the treaty reservation and of the Big Pasture. When applied to navigable streams such terms usually refer to the thread of the navigable current; and if there be several, to the thread of the one best suited and ordinarily used for navigation." But this section of Red River obviously is not navigable. It is without a continuous or dependable flow, has a relatively level bed of loose sand over which the water is well distributed when there is a substantial volume, and has no channel of any permanence other than that of which this sand bed is the bottom. The mere ribbons of shallow water which in relatively dry seasons find their way over the sand bed, readily and frequently shifting from one side to the other, can not be regarded as channels in the sense intended. · Evidently something less transient and better suited to mark a boundary was in mind. We think it was the channel extending from one cut bank to the other, which carries the water in times of a substantial flow. That was the only real channel, and therefore the majn channel. So its medial line must be what was designated as the Indian boundary.

Other questions common to all the riparian claims are whether the disposal of the lands on the northerly bank carried with it any right to the river bed in front of them; and if so, whether this right extends to the medial line of the stream or to the Texas boundary along the opposite bank. On these questions the parties are far apart. The State of Oklahoma and the placer mining claimants insist that no right to the river bed passed with the upland; the United States that such a right did pass, but extends only to the medial line, and the several riparian claimants that the right passed and extends to the Texas boundary a long the opposite bank.

as

17

17 Iowa v. Illinois, 147 l'. S. 1.

19

Where the United States owns the bed of a nonnavigable stream and the upland on one or both sides, it, of course, is free when disposing of the upland to retain all or any part of the river bed, and whether in any particular instance it has done so is essentially a question of what it intended. If by a treaty or statute or the terms of its patent it has shown that it intended to restrict the conveyance to the upland or to that and a part only of the river bed, that intention will be controlling ; 18 and if its intention be not otherwise shown, it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the State in which the land lies. Where it is disposing of tribal land of Indians under its guardianship the same rules apply.

What has been said concerning the treaty reservation, the Big Pasture, and the acts of 1900 and 1906 shows that the United States intended to dispose of the upland and the northerly half of the river bed, but nothing more. The southerly half of the bed had not been included in the reservation or the Big Pasture and was not subjected to the operation of the act of 1900 or that of 1906. This shows that the United States intended to retain that part of the bed. It follows that while the disposals under those acts could extend southward to the medial line, they could not go beyond it.

In executing the acts there was no attempt to dispose of the river bed separately from the upland. The disposals were all according to the legal subdivisions established by the survey of the upland and shown on the official plat. In the patents there was no express inclusion or exclusion of rights in the river bed.

Tested by the common law these conveyances of riparian tracts conferred a title extending not merely to the water line, but to the middle of the stream. Possibly, if the river bed for its entire breadth had been subject to Uisposal under the acts of 1900 and 1906, the title would have extended to the Texas boundary along the other side; but this is a debatable question which need not be considered here, for no disposal under those acts could go beyond the medial line. That limitation inhered in all that was done.

But it is contended that the common-law rule, although formerly adopted in Oklahoma and recently recognized by the supreme court of the State, a has been impledly abrogated by the legislature. The contention is not sustained by any decision in the State and, in our opinion, is not tenable. It is based on statutes displacing or qualifying the common-law rule respecting the rights of riparian proprietors in the natural flow of a stream, which is a matter quite distinct from the ownership of the bed of the stream. The rule as to either could be displaced without affecting the other.

Our conclusion on the general questions is that the disposal of the lands on the northerly bank carried with it a right to the bed of the river as far as, but not beyond, the medial line.

Particular questions relating to some of the riparian claims and not to others are presented, and we now turn to them.

20

21

18 Wilcox l'. Jackson. 13 Pet. 498, 510-517; Irvine 1. Marshall, 20 How. 558; Gibson 1°. (houteau, 1:3 Wall. 92. 99; l'tah Power & Light Co. 1. I'nited States, 243 U. S. 389, 404; Kean i. ('alumet (anal ('o., 190 ('. S. 452, 460.

19 Hardin 1. Jordar, 110 1'.S. :371, 384; Mitchell 1. Smale, 140 U. S. 406, 413-41+; Grand Rapids and Indiana R. R. Co. 1. Butler, 159 U, S. 87, 92; Hardin v. Shedd, 190 U'. S. 508, 519; Whitaker 1. McBride, 197 ('. S. 510, 512, 515-516; and see Railroad Co. t. Schurmeir, 7 Wall. 272, 287, et seq.

20 Rev. Laws Okla., 1910, $ 4642. 21 Hale v. Record, 44 Okla. 803.

The Indian allotments were made in 1909 and 1910, but have not been carried to final patents. They are evidenced by trust patents, so-called, wherein the United States engages to hold the land for a period of twenty-five years "in trust for the sole use and benefit” of the allottee, or of his heirs in the event of his death, and at the end of the trust period to convey 'the same to him, or to his heir's if he be not then living. The contention is made that no right to the river bed could pass under these allotments in advance of the issue of the final patent. Even if this were so, it well may be doubted that it would enable strangers to fasten any claim on or appropriate the bed in front of the allotments. But we think it is not so. The allotments when perfected passed the equitable title and beneficial use to all that would have passed under a full patent. The purpose of the holding in trust by the United States is to prevent allottees from improvidently alienating or encumbering the land, not to cut down or postpone their rights in other respects.

The lands along he north bank were surveyed and platted in 1874 and 1875. Afterwards, and before the disposals in question, portions of the bank were swept away in times of food. This changed the relation to the river of several surveyed tracts. Some became part of the bed and others nonriparian before became riparian. But most of the tracts on which the riparian claims before us are founded remained unchanged and need not be specially noticed.

Of the tracts changed from riparian upland to river bed, a small number were disposed of as if they still were upland abutting on the river—the disposal occurring while the adjacent land then actually riparian was unallotted and unsold. Evidently the disposal was intended to operate and have effect as if the tracts retained their former relation to the river; and, as nothing stood in the way, we think the title under the disposal reached to the middle of the stream,

Of the tracts which had been nonriparian but became riparian, all were disposed of in ordinary course. Generally the tracts in front of them which came to lie in the river bed were neither allotted nor sold. Where this was so, we think the right to the bed, out to the center line, passed with the tracts which had come to be riparian. But where there was a prior disposal of the tracts in the bed, that right, as just indicated, went with them.

Four legal subdivisions in township five south of range fourteen west were sold to Fred Capshaw and transferred by him to A. E. Pearson et al., who are intervenors here. Two of these subdivisions, lots 1 and 2 of section 8, were riparian when surveyed, but in the river bed when sold. Another, the N. W. 1 of the N. W. 1 of the same section, lay immediately back of these lots. The fourth, the N. E. 1 of the N. E. 1 of section 7, lay to one side of the third. At the time of the survey the fourth was separated from the river by a tract which afterwards came to be largely, if not entirely, in the river bed. This tract was sold to Robert L. Owen before the others were sold to Capshaw. Pearson et al. claim the river bed in front of lots 1 and 2 of section 8 and also in front of the N. E. of the X. E. of section 7. Their rights are just what Capshaw's were, neither more nor less. We think the bed of the river in front of the two lots in section 8, out to the middle, passed to Capshaw, but that no part of the bed passed to him with the X. E. I of the X. E. of section 7. All that could possibly have passed with that subdivision had already passed to Owen with the tract which lay in front of it.

The State of Oklahoma in its bill claimed riparian rights in portions of the bed by reason of its ownership of occasional school and other lands on the bank; but in its brief it has endeavored only to sustain the claim based on the asserted navigability of the river. As to the latter it has failed. According to the evidence, it owns riparian lands both within and without what was the Kiowa, Comanche and Apache reservation. As to such lands it is entitled to the same incidents of riparian ownership that any other owner would have. The fact that it has not pressed this right in its brief might be regarded by some as a waiver or renunciation of the right; but this hardly can have been intended. The State's riparian right will therefore be recognized in the decree.

What has been said indicates the disposition which must be made of all the riparian claims. It would serve no purpose to enumerate them here. All will be dealt with in the decree conformably to the views we have expressed.

We come next to the claims founded on placer-mining locations. These locations were all made in that part of the southerly half of the river bed which is in front of what was the Big Pasture. It is objected that some are overlapped by others and that some were without a supporting mineral discovery. But we put these questions aside and come directly to one which is common to all the locations, namely, whether that part of the bed was subject to location and acquisition under the mining laws. The placer claimants insist that it was and the United States that it was not. No one doubts that when these locations were made lands valuable for oil, if within areas where the mining laws were operative, could be located and acquired as placer claims.

The claimants rely on section 2319 of the Revised Statutes, which declares:

“ All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States."

This section is not as comprehensive as its words separately considered suggest. It is part of a chapter relating to mineral lands which in turn is part of a title dealing with the survey and disposal of “The Public Lands." To be rightly understood it must be read with due regard for the entire statute of which it is but a part, and when this is done it is apparent that, while embracing only lands owned by the United States, it does not embrace all that are so owned. Of course, it has no application to the grounds about the Capitol in Washington or to the lands in the National Cemetery at Arlington, no matter what their mineral value; and yet both belong to the United States. And so of the lands in the Yosemite National Park, the Yellowstone National Park, and the military reservations throughout the western States. Only where the United States has indicated that the lands are held for disposal under the land laws does the section apply; and it never applies where the United States directs that the disposal be only under other laws.

This part of the river bed was for many years in the Indian Territory, to which none of the land laws ever was extended. In 1890 it was made part of the Territory of Oklahoma by an act wherein Congress expressly indicated that the lands in that Territory should be disposed of under the homestead and townsite laws “ only." 22

A question arose under that act as to whether the exclusion of the mining laws relieved homestead applicants fro offering proof that the land sought to be entered was agricultural and not mineral, such proof being required where the mining laws were in force; and Congress promptly answered that question by saying, 'n an act of 1891, that “all lands in Oklahoma are hereby declared

2 Act of May 2, 1890, c. 182, $$1, 18, 20, 22, 26 Stat. 81.

[ocr errors]

25

to be agricultural lands, and proof of their nonmineral character shall not be required as a condition precedent to final entry." 25 In the many acts which followed wherein lands in Oklahoma were opened to disposal all but two exactly conformed to the policy announced in the acts of 1890 and 1891. The two exceptional acts were one of 1895 dealing with the Wichita lands 24 and the one of 1900, before described, dealing with the Kiowa, Comanche and Apache lands. The act of 1895 expressly extended the mining laws over the limited area to which it related, which was remote from the one with which we are here concerned. The act of 1900 expressly extended the mining laws to a part, but not all, of the lands to which it related that is to say, it extended them to such lands as were to be allotted and opened to settlement, but not to those set apart as grazing reserves. There never was any act subjecting the latter to the operat:on of the mining laws. On the contrary, the act of 1906 and its amendments show that the Big Pasture and other grazing reserves were to be disposed of only in other modes specially defined.

Thus the general policy in respect of lands in Oklahoma has been that the mining laws should not apply to them, and to this there have been but two exceptions, each confined to a limited area and neither embracing the locality in question. Even the words of the exceptions, “are hereby extended over the particular areas, plainly imply that but for them the mining laws would not have applied to those areas. The general policy is also reflected in the act of 1906, providing for Oklahoma's admission into the Union, the eighth section of which distinctly recognized the right of the State to receive mineral lands under the grants to it for school and other purposes,a thing not permitted to a State where the mining laws are in force.27

This is the view which has been uniformly taken and enforced by the officers of the land department in the administration of these acts.28 Those officers have not recognized or given any effect to these mining claims.

We conclude that this part of the river bed never was subject to location or acquisition under the mining laws-nor, indeed, to acquisition under any of the land laws-and therefore that these locations were of no effect and conferred no rights on the locators or their assigns.

The parties in interest will be accorded twenty days within which to submit a proper form of decree disposing of the several claims now before us in conformity with the views expressed in this opinion.

It is so ordered.
A true copy.
Test :

Clerk, Supreme Court, U. S. The CHAIRMAN. We are now ready to begin the hearings. I suppose, Mr. Dyar, we may hear from you as representing the Attorney General's Office?

26

STATEMENT OF MR. W. W. DYAR.

The CHAIRMAN. Mr. Dyar, state whom you represent.
Mr. DYAR. I represent the Department of Justice.

28 Act March 3, 1891, $16, c. 543, 26 Stat. 989, 1026.
24 Act March 2, 1895, c. 188, 28 Stat. 876, 899.
25 Act June 6, 1900, c. 813, 31 Stat. 672, 676–681.
3.Act June 16, 1906, c. 3333, $ 8, 34 Stat. 267.
27 United States 1. Sweet, 245 U. S. 563.

28 Acme Plaster and Cement Co., 31 L. D. 125 ; Instructions, 31 L. D. 154 ; E. A. Shirley, 33 L. D. 113; Regulations, $ 38, 35 L. D. 239; Benjamin F. Robinson, 3.5 L. D. 421 ; Lenertz 1. Malloy, 36 L. D. 170; Knight Placer Mining Assn. 4. Hardin, 47 L. D. 331.

« PrejšnjaNaprej »