Allen v. Petrick
| Decision Date | 12 January 1924 |
| Docket Number | 5279. |
| Citation | 222 P. 451,69 Mont. 373 |
| Parties | ALLEN v. PETRICK ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Park County; C. D. Borton, Judge.
Action by George A. Allen against Tony Petrick, Addie Lyons, David Shorthill, Robert D. Shorthill, as administrator of the estate of Alice Shorthill, deceased, Robert D. Shorthill, as guardian of the person and estate of Charles Wesley Allen, a minor, Charles A. Shorthill, Elizabeth Lindsay, and others. From the judgment rendered, the named defendants, other than Tony Petrick, appeal. Remanded, with directions.
Frank Arnold and Gibson & Smith, all of Livingston, for appellants.
O'Connor & Miller, of Livingston, for respondents.
Strawberry creek rises in the Absarokee mountains, in Park county, and flows westerly into the Yellowstone river. In 1880 and the following years settlers took ditches from the creek for irrigating adjacent ranches. As in nearly all cases of this character the amounts of water used were small at first and greater in more recent years. A controversy having arisen as to their respective priorities to the use of the waters of the stream, the plaintiff brought this suit against the defendants. Practically all of the parties are successors in interest of the original appropriators. From the court's decree the defendants Robert D. Shorthill and others, owners of the Shorthill or Ringlesby right, and Addie Lyons, owner of the Meyer right, have appealed to this court. In brief, their contentions are that the district court erred in failing to give their respective rights the priorities to which they are entitled, erred in giving defendant Malcolm a right as of December, 1885, and in awarding him 380 inches of water, and erred in the amount awarded the defendant R. B. Forney.
The record in this case consists of three volumes, printed, over 900 pages in all, with original exhibits consisting of deeds notices of appropriation, and the like. The cause was argued and submitted upon September 14, 1923. Shortly after this we took up its consideration. After reading all of the testimony, documentary exhibits, and carefully considering the briefs in connection with the testimony and the maps which were certified to this court, we found it necessary to call upon counsel for additional briefs. These have been furnished, the last having been filed December 14. Since that date the court has been engrossed with matters of grave general importance, which prevented sooner disposition of this case. After a further study of the record, together with the supplemental briefs, we are unable to reach conclusions which are satisfactory to us; but, as the parties seem to have produced all the evidence within their command, no good purpose would be served by sending back the case, or any part of it, for a new trial. The trial court was confronted with that condition which frequently appears in water suits where old rights are involved: All or nearly all of the settlers who did the original work are gone. Those who do appear are hampered with failing memories, or are unable to dissociate fact from hearsay. Neighbors testify from impressions remaining after the lapse of years. Much of their testimony is guesswork. Men who were boys when the things inquired about were being done appear, and their testimony is colored by the free fancies of boyhood which memory still retains. So the appellate as well as the trial court must do the best it can with what it has to work with.
1. There is much contention over the Ringlesby right of the Shorthills. In their answer the Shorthills claimed 300 inches appropriated in 1882. The court gave them 165 inches as of 1897. It would be useless to discuss the testimony bearing on this right. It is in confusion and hopeless conflict. It cannot be said that the evidence preponderates against the finding. This court will not overturn the findings of the trial court unless there is a decided preponderance of the evidence against them (Copper Mountain M. & S. Co. v Butte & Corbin Con. C. & S. Co., 39 Mont. 487, 104 P 540, 133 Am. St. Rep. 595), and, when the evidence, fully considered, furnishes reasonable grounds for different conclusions, the findings will not be disturbed. Nolan v. Benninghoff, 64 Mont. 68, 208 P. 905.
2. The appealing defendants complain that excessive amounts of water were granted to the defendants Malcolm and R. B. Forney, and it cannot be denied that their complaint is well founded. Malcolm was given 380 inches. He irrigates approximately 150 acres of land. Forney was given 250 inches as of 1880, the first right in the creek, upon the basis of his ownership of 160 acres of land irrigated by his ditches 7 and 8. A considerable portion of this 160 has never been irrigated. Across the creek he has 53 acres more, not all of which is irrigated, covered by a ditch known as No. 6. For this he was given 100 inches as of April, 1901. Mary Forney, his wife, has 40 acres irrigated by ditch No. 7, and for this she was given 100 inches as of June 22, 1907. Curiously enough, no complaint is made respecting these 1901 and 1907 rights, probably because they cannot be supplied except in high water. The foregoing illustrates that the waters of Strawberry creek were distributed with liberality, to say the least.
The quantity of water which may be claimed lawfully under a prior appropriation is limited to that quantity within the amount claimed which the appropriator has needed, and which within a reasonable time he has actually and economically applied to a beneficial use. Power v. Switzer, 21 Mont. 523, 55 P. 32; Toohey v. Campbell, 24 Mont. 13, 60 P. 396; Smith v. Duff, 39 Mont. 382, 102 P. 984, 133 Am. St. Rep. 587. If comparison between the principles regulating the appropriation and use of water is permissible, it may be said that the principle of beneficial use is the one of paramount importance.
The appropriator does not own the water. Creek v. Bozeman Waterworks Co., 15 Mont. 121, 38 P. 459; Anderson v. Cook, 25 Mont. 330, 64 P. 873, 65 P. 113. He has a right of ownership in its use only. The use of water in Montana is vital to the prosperity of our people. Its use, even by an individual, to irrigate a farm, is so much a contributing factor to the welfare of the state that the people, in adopting the Contitution, declared it to be a public use. Ellinghouse v. Taylor, 19 Mont. 462, 48 P. 757; City of Helena v. Rogan, 26 Mont. 452, 68 P. 798.
In Montana, as elsewhere, when the early settlers made their original appropriations they had little knowledge of the quantity of water necessary to irrigate their lands to good advantage. Ample quantities of water being available in the streams, the settlers claimed extravagant amounts. While usually the ditches were comparatively small at first, these grew in size from year to year. To a large extent this was necessary as the settlers increased their cultivated areas as their means permitted. But the duty of water was seldom, if ever, understood. Almost every irrigator used an excessive amount of water, some all they could get. Some actually washed the seed out of the ground. In the irrigation of hay and pasture lands it was a common practice to "irrigate on horseback," that is, the irrigator went on horseback with his shovel to his main ditch or laterals at intervals--and sometimes at long intervals--and "changed his water." In many instances, to use the phrase of the Supreme Court of Oregon, a man used all he could get and got all he could. When the country became more thickly settled and the people began to farm more thoroughly, and according to more approved methods, it began to be understood by practical as well as scientific experience that the use of excessive quantities of water was detrimental rather than beneficial to the land. The fact became understood by many that much better crops were raised by small amounts of water properly applied than by excessive amounts howsoever applied. Yet here, as elsewhere, many still adhere to extravagant use of water, although it is apparent to the enlightened that these users are raising smaller and poorer crops than they would raise, if they used water more sparingly and intelligently. See Kinney on Irrigation (2d Ed.) § 875. The following observation by Mr. Kinney is also apropos:
Section 876.
It is a matter of common knowledge in the several judicial districts of this state where irrigation has been practiced since the early days that extravagant quantities of water were awarded the litigants by the courts. In instances more water was awarded than some of the ditches of the litigants ever would carry; in others much greater quantities of water than the litigants ever did or could use beneficially. In some cases the courts were not to blame. The litigants agreed to get all they could. They even stipulated to the use of quantities of water ridiculously large for the amount of land irrigated. To check this practice respecting stipulations the Legislature in 1905 passed what is now section 7128, Revised Codes of 1921. In water suits in which members of this court have been engaged the trial judges have been confronted with aged witnesses who testified to what took place in early days. These venerable men, having more or less knowledge of what they testified about, frequently looked through mental magnifying glasses in attempting to recall forgotten things from bygone days. The difficulty encountered in...
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