(273 F.)

To assist in raising a wrecked car to rescue fellow employés, and incidentally to clear the track for interstate commerce, was held to be work of an interstate character. Southern R. Co. v. Puckett, 244 U. S. 571, 37 Sup. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918B, 69. Where two loaded cars coming from without the state were received at the railroad yard, and switching movements necessary to place the cars on private tracks were indulged in, it was held to be work incident to interstate commerce. Pennsylvania Co. v. Donat, 239 U. S. 50, 36 Sup. Ct. 4, 60 L. Ed. 139.

Examining the character of the act which was being performed by the plaintiff in error at the time of his injury, we think he was engaged in the work of preparing a train which was to move out of the state of Pennsylvania into New York state. A necessary part of this work was to drill the cars in making up the train. The removal of a purely intrastate car, or one which was simply to be shifted in the yard, and thus to facilitate the interstate movement of the train, justifies the claim of the plaintiff in error that he, at the time, was engaged in an act which was directly and immediately connected with interstate business, and which subsequently formed a part or was a necessary incident thereof.

[2] The Act of March 2, 1893, as amended April 1, 1896 (Safety Appliance Act), being Comp. St. § 8610, provides for equipment of automatic power brakes, automatic couplers, grabirons, and the height of drawbars. It is provided by the Act of March 2, 1903 (32 Stat. at Large, 943, c. 976 [Comp. St. § 8613]):

"The provisions and requirements hereof and of said acts relating to train brakes, automatic couplers, grabirons, and the height of drawbars shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, and in the territories and the District of Columbia and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith."

By the Act of April 14, 1910 (Comp. St. §§ 8617, 8618), it was provided:

"That the provisions of this act shall apply to every common carrier and every vehicle subject to the act of March second, eighteen hundred and ninety-three, as amended April first, eighteen hundred and ninety-six, and March second, nineteen hundred and three, commonly known as the 'Safety Appliance Act.'

Sec. 2.

That on and after July 1st, nineteen hundred and eleven, it shall be unlawful for any common carrier subject to the provisions of this act to haul, or permit to be hauled or used on its line any car subject to the provisions of this act not equipped with appliances provided for in this act, to wit: All cars must be equipped with secure sill steps and efficient hand

brakes."

The amendment of 1903 applies to all trains, locomotives, tenders, cars, and steam vehicles used on any railroad engaged in interstate commerce, and by the amendment of 1910 it is provided that efficient hand brakes shall be supplied to every common carrier and every vehicle subject to the act of March 3, 1893, as amended April 1, 1896, and March 2, 1903. The defendant in error was an interstate railroad company; therefore it was required, under the Safety Appliance Act, to provide efficient brakes whether used in interstate or intrastate com

merce. Texas & P. R. Co. v. Rigsby, 241 U. S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874; Southern Ry. Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; Ronald v. Lehigh V. R. (C. C. A.) 265 Fed. 138; Ross v. Schooley, 257 Fed. 290, 168 Č. C. A. 374; Ward v. Erie, 230 N. Y. 231, 129 N. E. 886. For a breach of this obligation, absolute liability of the railroad company, in case of injury because of a failure to comply with the act, is imposed. St. Louis, etc., Ry. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061; Atlantic City R. Co. v. Parker, 242 U. S. 56, 37 Sup. Ct. 69, 61 L. Ed. 150. In the latter case, the court said:

"If there was evidence that the railroad failed to furnish such 'couplers coupling automatically by impact' as the 'statute requires (Johnson v. Southern Pacific Co., 196 U. S. 1, 18, 19), nothing else needs to be considered. We are of opinion that there was enough evidence to go to the jury upon that point. No doubt there are arguments that the jury should have decided the other way. Some lateral play must be allowed to drawheads, and, further, the car was on a curve, which, of course, would tend to throw the coupler out of line. But the jury were warranted in finding that the curve was so slight as not to affect the case, and in regarding the track as for this purpose a straight line. If couplers failed to couple automatically upon a straight track, it at least may be said that a jury would be warranted in finding that a lateral play so great as to prevent coupling was not needed, and that, in the absence of any explanation believed by them, the failure indicated that the railroad had not fully complied with the law."

In Minneapolis & St. Louis R. R. Co. v. Gotschall, 244 U. S. 66, 37 Sup. Ct. 598, 61 L. Ed. 995, it was said:

"The jury, under an instruction of the court, was permitted to infer negligence on the part of the company from the fact that the coupler failed to perform its function, there being no other proof of negligence. It is insisted this was error, since, as there was no other evidence of negligence on the part of the company, the instruction of the court was erroneous as, from whatever point of view looked at, it was but an application of the principle designated as res ipsa loquitur, a doctrine the unsoundness of which, it is said, plainly results from the decisions in Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, and Looney v. Metropolitan R. R. Co., 200 U. S. 480. We think the contention is without merit, because, conceding in the fullest measure the correctness of the ruling announced in the cases relied upon to the effect that negligence may not be inferred from the mere happening of an accident, except under the most exceptional circumstances, we are of opinion such principle is here not controlling, in view of the positive duty imposed by the statute upon the railroad to furnish safe appliances for the coupling of cars."

[3] We think the evidence here of the condition of the brake with a piece of chain wrapped around a piece of wood to take up the slack was sufficient evidence to require the submission of the question of fact to the jury as to whether the defendant in error has complied with the requirements of the statute.

Judgment reversed.

(273 F.)

SKEEM et al. v. UNITED STATES et al.

(Circuit Court of Appeals, Ninth Circuit. May 2, 1921.)

No. 3528.

1. Indians

11, 16 (4)—Treaty reservation of irrigation water rights held to reserve right to waters necessary for land subsequently reduced to cultivation; water rights not lost by lease of land.

As respects lands on the Ft. Hall Indian Reservation, occupied and retained by Indians under article 6 of the Ft. Bridger Treaty, ratified February 24, 1869 and the treaty ratified by Act Feb. 23, 1889, held that, the treaty of 1898 ceding to the government land comprising the southern portion of the reservation, but providing that Indians occupying and making their homes on lands under the earlier treaty might retain them, did not, by providing in article 8 "that water from streams on that portion of the reservation now sold, which is necessary for irrigation on land actually cultivated and in use, shall be reserved for the Indians now using the same so long as said Indians remain where they now live," operate to limit the extent of the water rights of the occupying Indians, by reserving to them only the quantity of water necessary for the irrigation of such of their lands as were at the time of the 1898 treaty irrigated, but the reservation covered water subsequently required for land later reduced to cultivation, and furthermore reserved water rights to the use of tenants of the land in case they were leased by the Indian allottees under Act June 25, 1910, and neither the actual leasing of their lands nor the surrender of possession to the lessees operated to relinquish any water rights in the land which the Indians chose to retain. 2. Indians 11-All rights not specifically granted by Indians in treaty are reserved to them.

By an Indian treaty granting Indian lands to the United States, all rights not specifically granted are reserved to the Indians.

3. Indians 11-Treaty provisions as to lands occupied by Indians liberally construed in favor of such occupant.

Provisions of Indian treaties respecting lands occupied and cultivated by Indians, such as article 11 of the Ft. Bridger Treaty, ratified February 24, 1869, and article 3 and 8 of the 1898 treaty with the same Indians, should be construed in the light of the purpose of the government to induce the Indians to relinquish their nomadic habits and till the soil, and such meaning should be given them as will enable the Indians to cultivate eventually the whole of their lands so reserved to their use.

4. Indians 11-Treaties construed in their favor.

Where there is ambiguity in a treaty granting Indian lands to the government, the language used in the treaty should not be construed to the prejudice of the Indians.

Appeal from the District Court of the United States for the Eastern Division of the District of Idaho; Frank S. Dietrich, Judge.

Suit by the United States and another against C. S. Skeem and others. Decree for plaintiffs, and defendants appeal. Affirmed.

J. H. Peterson and T. C. Coffin, both of Pocatello, Idaho, for appellants.

J. L. McClear, U. S. Atty., and J. R. Smead, Asst. U. S. Atty., both of Boise, Idaho, for appellees.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

GILBERT, Circuit Judge. [1] The United States brought a suit on behalf of certain Indians who had belonged to the Ft. Hall Indian reservation, to determine their rights as against the appellants herein to the waters of Indian creek for irrigation purposes. In 1868 a treaty was consummated between the United States and the Bannacks and the eastern band of the Shoshones, known as the Ft. Bridger Treaty, which in 1869 was ratified by Congress (15 Stat. 673). Article 6 of the treaty provided that any Indian who might desire to commence. farming might select a tract of land "within the reservation of his tribe" for agricultural purposes, and that thereafter he should have the exclusive possession of the same, and that thereafter said land "may be occupied and held in the exclusive possession of the person selecting it, and of his family, so long as he or they may continue to cultivate it." In 1880 a second treaty was entered into, by which it was directed that allotments in severalty should be made on the Ft. Hall reservation, one to each head of a family, and to other persons belonging to the tribes on such reservation. It was further provided that the reserved lands should be surveyed for the purpose of such allotment, and that the same after allotment should be patented. The treaty was ratified in 1889 (25 Stat. 687). In 1898 (31 Stat. 672) a treaty was made whereby the Indians ceded to the United States a large body of land comprising the southern portion of the reservation. The treaty provided that any Indians who had taken lands and made homes on the reservation and were then occupying and cultivating the same under the sixth article of the Ft. Bridger Treaty, should not be removed from the ceded lands, but might retain the tracts of which they had taken possession under the earlier treaty and might receive allotments of the

same.

The Indians whose rights were asserted by the government in the present suit had taken possession of and had commenced the cultivation of the lands involved in the suit. This they had done some years prior to the treaty of 1889. They elected to retain the lands which they occupied. The act whereby the treaty of 1898 was ratified provided that any portions of the ceded tract retained by Indians in accordance with the Ft. Bridger Treaty should be allotted to them before any of the ceded lands should be open to settlement or entry. All the remainder of the ceded lands were made subject to entry under the homestead, townsite, stone, timber, and mining laws of the United States. Thereafter the lands were surveyed and allotted, and included among the allotments were the lands of the Indians whose rights are involved in the present controversy. Trust patents were issued for the benefit of the Indians, containing a provision that the lands so patented "shall not be subject to the judgment, order, or decree of any court." Article 8 of the treaty of 1898 provides:

"That water from streams on that portion of the reservation now sold which is necessary for irrigating on land actually cultivated and in use shall be reserved for the Indians now using the same, so long as said Indians remain where they now live."

The appellants contend that the article operates to limit the extent of the water rights of the Indians, and that it reserves to them only

(273 F.)

the quantity of water necessary for the irrigation of such portions of their lands as were at that time actually irrigated, and that they were without authority to use water for the irrigation of the remainder of their lands in case they might subsequently reduce the same to cultivation. The court below, properly, we think, ruled against this contention. The language of article 8 should be construed in the light of the following considerations:

[2] First. The grant was not a grant to the Indians, but was a grant from the Indians to the United States, and such being the case all rights not specifically granted were reserved to the Indians. United States v. Winans, 198 U. S. 371, 25 Sup. Ct. 662, 49 L. Ed. 1089;. Winters v. United States, 207 U. S. 564, 28 Sup. Ct. 207, 52 L. Ed. 340.

[3] Second. Article 8 should be construed together with article 3 of the same treaty, which provides:

"Where any Indians have taken lands and made homes on the reservation, and are now occupying and cultivating the same, under the sixth section of the Ft. Bridger Treaty hereinbefore referred to, they shall not be removed therefrom without their consent, and they may receive allotments on the lands they now occupy; but in case they prefer to remove they may select land elsewhere on that portion of said reservation not hereby ceded, granted, and relinquished, and not occupied by any other Indians."

The right so conceded to the lands the Indians "are now occupying and cultivating" clearly refers to the lands of which they were in possession, and not to that portion of the lands which they had actually cultivated and irrigated, and article 8 should be given no narrower construction than Article 3. Article 8 should also be construed in the light of the Ft. Bridger Treaty, artic'e 11 of which provided:

"No cession by the tribe shall be understood or construed in such a manner as to deprive without his consent any individual member of the tribe of his right to any tract of land selected by him, as provided in article 6 of this treaty."

The purpose of the government was to induce the Indians to relinquish their nomadic habits and to till the soil, and the treaties should be construed in the light of that purpose and such meaning should be given them as will enable the Indians to cultivate eventually the whole of their lands so reserved to their use.

[4] Third. If there is ambiguity, the language used in the treaty should not be construed to the prejudice of the Indians. Choctaw Nation v. United States, 119 U. S. 1, 27, 7 Sup. Ct. 75, 30 L. Ed. 306.

It is contended further that article 8 reserves water rights only to the Indians "now using the same, so long as said Indians remain where they now live," and that the court below erroneously ruled that such rights were reserved to the use of tenants of the lands in cases where the Indians had leased the same. The litigation concerns seven contiguous allotments of 80 acres each. Two of the allottees had died. before the commencement of the suit, and all the allotments were leased to the appellee Hofhine in 1914, and the allottees have not since resided thereon. By Act of Congress of June 25, 1910 (36 Stat. 855), it was provided: