Alder Gulch Consol. Min. Co. v. Hayes

• Citation: 6 Mont. 31
• Parties: ALDER GULCH CONSOLIDATED MIN. CO. v. HAYES and others.
• Decision Date: 15 January 1886
• Court: United States State Supreme Court of Montana

6 Mont. 31

ALDER GULCH CONSOLIDATED MIN. CO.

v.HAYES and others.

Supreme Court of the Territory of Montana.

Filed January 15, 1886.

Appeal from First district, Madison county.

James E. Callaway, for appellants.

Samuel Word and Henry N. Blake, for respondent.

GALBRAITH, J.

We would be warranted in refusing to determine this cause, for the reason that it does not comply with the rule of this court as to the mechanical method of its presentation. It should not have been filed with the clerk; but, on account of its importance, we have concluded to consider it. It is an appeal from a judgment. The evidence has been stricken out of the transcript; but even if it were not, it would not be considered on this appeal from the judgment alone. To enable us to look into the evidence, and to determine whether or not the findings of the court were supported thereby, a motion for a new trial was necessary. Allport v. Kelley, 2 Mont. 343;Chumasero v. Vial, 3 Mont. 376.

There is no bill of exceptions. The only question, therefore, which this record presents for our consideration is whether or not the judgment is inconsistent with the express findings of the court. Chumasero v. Vial, supra; Mathews v. Kinsell, 41 Cal. 512;Thompson v. O'Neil, Id. 683. It is a principle of law that all facts which are necessary to support the judgment, and which come within the issues raised by the pleadings, although not expressly found, will be presumed to be in accordance with the judgment. Thompson v. O'Neil, supra.

Following are the findings of the court:

“(1) That the plaintiff, at the commencement of this action, was, and is now, a corporation organized and existing under the laws of the territory of Montana, and doing business as such in its corporate name of Alder Gulch Consolidated Mining Company.

(2) That said plaintiff, in April, A. D. 1883, was, and ever since has been, and is now, the owner and possessor of the placer mining ground situated in Alder gulch, county of Madison, territory aforesaid, described in the complaint of plaintiff; that said ground is valuable for the gold and precious metals therein contained; that plaintiff had constructed on said ground in April, A. D. 1883, and ever since said time has had, a bed-rock flume, a reservoir, and dams and other structures for the purpose of mining said ground.

(3) That the defendants, for more than seven years prior to the commencement of this action, were, and ever since have been, the owners and possessors of the placer mining ground in said defendant's answer described; and that the ditch of defendants which is mentioned in the complaint and answer on file herein was constructed by the defendants to mine their said ground.

(4) That said ditch of the defendants is intended to divert the water flowing in said Alder gulch at a point where the Cover dam was constructed in A. D. 1883, and to convey the same by about 2,000 feet of said mining ground of the plaintiff, and said reservoir of the plaintiff, and discharge the same at a point on said ground of the defendants about 800 feet west and below said reservoir; and that plaintiff is thereby deprived of the use of said water in said reservoir, and about 800 feet above the head-gates of the flume of plaintiff.

(5) That in 1883, Cover bar on the east side of said Alder gulch, and Fairweather bar on the west side of said gulch,-the latter being about 1,800 feet below the former, -were located at the same time, and notice of location by the original discoverers, Cover, Fairweather, Edgar, and Hughes, who are partners, that the discovery claims were 400 feet long on each claim bar. That said discoverers as partners then claimed the privilege of constructing a ditch on each of said bars, commencing at the discovery claims thereon, and thence running up until it intersected said Alder gulch, and using the water of said gulch for mining purposes on said bars.

(6) That said discoverers immediately thereafter constructed said ditches and worked their claims on said bars, by the use of the waters of said Alder gulch or creek, which then flowed in or near the middle of said gulch.

(7) That said Cover bar has been nearly worked out, and that mining operations thereon have ceased, and no water was at the commencement of this action used on said bar, or demanded therefor, but the same flowed by said bar, and was used below by the plaintiff on its said ground.

(8) That the water for said Cover bar was obtained by means of a dam across said Alder gulch or creek, and a ditch running therefrom to said bar on the line thereof as originally located.

(9) That the Fairweather bar has been worked extensively, but has not been exhausted, and that the defendants, whose said ground includes a part of said bar, intended to mine the same by means of their said ditch.

(10) That the said discoverers obtained water originally for the said Fairweather bar through the Fairweather ditch, as located by them in 1863. That the head of said Fairweather ditch was about 100 feet below the point in said Alder gulch or creek where the water was discharged from said Cover bar after being used thereon by said discoverers and their successors; that said water from said Cover bar thence flowed through said Fairweather ditch to said Fairweather bar, and that the said Fairweather ditch had not, prior to the commencement of this action, been used for a period of five years, and had been, through mining operations, washed out and destroyed in some places; and that these operations have been carried on by water obtained from the Cover bar and ditch on Cover bar, and above it.

(11) That the defendants own the Cover dam and ditch and water-right, and claim the right to use the water originally located for mining purposes on Cover bar by means of their said new ditch upon their said ground in said answer described.

(12) That the plaintiff at the commencement of this action, owned and has ever since owned, mining ground in said Alder gulch, on which the head and a portion of said Fairweather ditch were originally constructed, and...