delivered the opinion of the court.
This suit was brought by the United States, R. H. Milroy, as Indian agent, and several Indian plaintiffs, for themselves and for the Yakima nation or tribe of Indians, of which they are alleged to be members, to restrain the appellee, Frank Taylor, from maintaining a fence around a large body of land abutting upon Turn Water fishery in the Columbia River, which fence the complaint alleges obstructs the land approaches to said fishery, and thus prevents the whole enjoyment thereof claimed by said Indians under their treaty with the United States, entered into June 9,1855, and ratified by the Senate of the United States March 8, 1859. By his answer the appellee admits the making and ratification of said treaty, and the inclosing of said land by a fence upon a portion thereof over which said Indians had been accustomed to travel in going to and from said fishery; that there was no fence built upon the side next to the river, the river itself being the only means of inclosure on that side; but avers that he had the right, as owner in fee of said land, to thus inclose the same to protect his crops growing thereon, notwithstanding said treaty.
Appellants replied, and the cause was tried upon these pleadings. There are other issues raised by the pleadings, but they are immaterial on this appeal, under the stipulation upon which the decree was given, from which this appeal is prosecuted. The stipulation referred to is as follows: —
“1. That the treaty mentioned in the complaint in this action was made and concluded as therein alleged, and that the plaintiffs are members of the Yakima tribe or nation of Indians, as alleged in the-complaint. 2. That prior to and at the time of entering into said treaty, the Turn Water fishery mentioned and described in the pleadings was one of the ancient, usual, and accustomed fisheries of said Yakima. *95tribe or nation of Indians, and referred to in said treaty* was used and enjoyed as such by the Indians of said tribe in the manner in the complaint alleged, and continued to be so used and enjoyed therefor, except as hereinafter stated, and that said Indian plaintiffs as members of said tribe or nation so used and enjoyed the same. 3. That subsequent to the conclusion and ratification of said treaty, and before the commencement of this action, the said defendant, Frank Taylor, and his several grantors, obtained patents from the United States to the lands in the complaint and answer described, under the homestead, pre-emption, and other land laws of the United States, and said Taylor is still the owner thereof. 4. That said lands extend to and border upon the Columbia River at the site of said fishery, and are the same lands over and upon which said Indians have heretofore been accustomed to go and return from said fishery, and upon which they had landed and cured the fish taken by them from said fishery, and where they have been accustomed during the fishing season to make their temporary abode and pasture their ponies. 5. That since his acquirement of said land, said Frank Taylor, as owner thereof, has caused the same to be inclosed by lawful fences" for the purpose of utilizing the same for agricultural purposes, thereby preventing said Indians from entering upon the same, as before they had been accustomed to do, under the claim that the United States, by means of the said grants, invested him and his said grantors with absolute title to said lands, and the exclusive right to use the same. 6. That upon these facts we submit to the court whether the defendant is entitled to a decree dismissing plaintiff’s bill. If the decision of the court should give the defendant the right to exclude the Indians referred to in the complaint from his said lands, the cause is to be dismissed and judgment entered for defendant; but if the court decides that said Indians are entitled to access over the lands of defend*96ant to said fishery, then the cause shall proceed upon testimony to be taken as to the conduct of defendant ■complained of, in order to determine what relief shall be granted herein.”
From the above stipulation, it will at once be seen that the single question now to be determined is that of the rights of the appellants under said treaty as against the appellee, as owner of the land by title acquired from the United States subsequent to said treaty under the homestead laws and other acts of Congress.
The portion of said treaty under which appellants claim their right to relief herein is as follows: “The exclusive right of taking fish in all streams where running through or bordering said reservation is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed-places, in common with citizens of the territory, and of erecting temporary buildings for curing them, together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.”
Both parties invoke the aid of the rule laid down by the Supreme Court of the United States, that a treaty of this kind is to be liberally construed in favor of the Indians, and that in so far as the language used will allow, that construction will be adopted which will best sub-serve the object which the Indians at the time the treaty was made would have been most likely to have desired and understood. We must then investigate the treaty in question in the light of this rule. The appellants contend that this clause was a reservation from the force and effect of other portions of the treaty of certain rights therein specified, while the appellee insists that it should be construed as a specific grant of rights by the United States. We think the contention of the appellants must prevail, as it seems to us that the Indians in making the treaty would have been more likely to have intended to *97.grant only such rights as they were to part with, rather than to have conveyed all, with the understanding that certain rights were to be at once reconveyed to them. What did the Indians intend to reserve to themselves by the words “as also the right of taking fish at all usual and accustomed places, in common with citizens of the territory” ?
It will be seen by the statement of facts above set out that at the time this treaty was made there existed within the territory which was the subject-matter of the treaty certain ancient fisheries which had for generations been used as such by said Indians, who had certain well-defined habits and methods connected with • such use. And it is contended on the part of appellant that the effect of the words above quoted was to reserve to the Indians the right to enjoy all of these fisheries as they had heretofore.
While on the other side it is claimed that the liberal interpretation of the words in the interest of the Indians would make them apply, not to any particular places of fishing then in use, but to all places which in the future might become usual and accustomed places of fishing, and that as to such places they had the same rights as ■other citizens, and in addition thereto, the right to use the shore for the purpose of curing their fish.
Many arguments can be and have been made in favor of each of these positions. But when we take into consideration the facts disclosed by this record, and the further fact, which the court knows as a matter of com■mon knowledge, that these Indians were always tenacious in adhering to past customs and traditions, we think the contention of appellant must prevail, as we think it much more natural that these Indians should have desired to preserve as fully as possible a right then and for a long time before enjoyed by them, rather than to have provided for a right to be enjoyed in unknown ways and under new conditions, even although such new rights *98might possibly be of more avail than the old; besides, the construction contended for by appellee would make the right to use the shore for the purpose of erecting houses- and drying fish a servitude imposed upon all the shore line of the territory, so that every person occupying the same would be liable to have his occupancy disturbed by such floating servitude, though at the time he purchased,, the water in front of the land had never been a place used for taking fish. And' it seems to us that this servitude would, when viewed from the standpoint of the-United States as a contracting party, have been much more objectionable than the other one, though in the minds of the Indians, as the other contracting party therein, old places and methods would doubtless seem,, and would probably be, to them of much greater value. The appellee further claims that even if the above position is correct, and the Indians were entitled by said treaty to the rights claimed, still that such rights do not-now exist as against the defendant, as by the act of Congress subsequently passed, under which he has taken this land, such treaty has, as to him, been repealed; but with this position we cannot agree, as these laws simply authorize the appropriation by the settler of unappropriated lands, and only authorize the extinguishment of the title which the government holds at the time of the appropriation, and if the land selected by the settler has-at such time any servitude or easement impressed upon it, he takes subject thereto.
It follows from what has been said, and. from the agreement of the parties, that the judgment of the District Court must be reversed, and the cause remanded for further proceedings in accordance with such stipulation and this opinion.
Greene, C. J., and Langford, J., concurred.