OCR Text |
Show OPINION IS GIVES IN IIEHSTI Waters ou Indian Reservation Not Opened Arc Subject to Appropriation. SO SAYS SUPREME COURT-IN COURT-IN THK SOWARDS CASE Makes No Difference if Appro-priator Appro-priator Has No Present Right in Lands. Tho supremo court, in an opinion1 handed 'down Saturday, holds that wa-. tors on an Indian reservation which has not been opened up for sctt lenient tire 'subject lb npproprintion under the laws of tho stale for any beneficial purpose This question was decided in the ense Of 2sT. O. Sowards and .7. L. Gibson, appellants, against, N.' J. Meagher, A. N. Jarvis and tuo Dry .Uuicti irrigation irriga-tion company. The court affirms the judgment of tho Fourth district in tho matter. Tho facts in the caso showed that Sowards and Gibson, on August 2S. 1005, tiled their application with the state engineer to appropriate 1100 second feet of the waters of tho east fork of Luke Fork of tho Green rivor in Wasatch county for the purpose of irrigating irri-gating 33.US0 acres of land. Meagher, Jarvis and tho irrigation company protested pro-tested against the application and the stato engineer sustained their protest, and also approved tho filings on the some water mado by Mcachuer und Jarvis. Jar-vis. Action Is Brought. An action was then brought by Sowards and Gibson to determine the rights to the water. It was alleged iu the complaint cthat Jarvis filed his application for the water July 31, 1905, and that Meagher filed August 10, of tho same yoar, but it "was contonded and alleged by the plaintiffs that the waters and lands intended to be irrigated irri-gated by the same woro at the rimo of tho filings of Meagher and Jarvis included in-cluded in an Indian reservation and not subjoet to appropriation under the stato laws. It; was also alleged that Sowards and Gibson filed the first application ap-plication J'or the waters after tho reservation reser-vation -was opened for settlement. A demurrer to this complaint was filed and sustained by the lower court. Tho plaintiffs elected to-stand on their pleadings, so tho court dismissed the complaint. An appeal was then tukon to the supreme court. What Supreme Court Says. In its opinion, tho supreme court says that there is no doubt that water ou an Indian resorvation is subject to appropriation for u beneficial purpose, although tho appropriator has not at the time of tuo appropriation a present right or inlorcst in the lands along the stream from which tho water is appropriated. appro-priated. The court holds that the stato engineer didnot err in sustaining the protest of defoudants and in approving their application, neither did the lower court err in sustaining tho demurrer to tho complaint. The nudgmcnt is therefore there-fore affirmed. , Tho opinion of the court -was written by Chief Justice Straup and concurred in by bin associates. |