Allendale Irr. Co. v. State Water Conservation Board
| Decision Date | 27 June 1942 |
| Docket Number | 8250. |
| Citation | 127 P.2d 227,113 Mont. 436 |
| Parties | ALLENDALE IRR. CO. v. STATE WATER CONSERVATION BOARD et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Third District, Granite County; George W. Padbury, Jr., Judge.
Suit for an injunction by Allendale Irrigation Company against State Water Conservation Board and another. From a decree for defendant, plaintiff appeals.
Remanded with directions.
W. E Keeley and James B. Castles, both of Deer Lodge, for appellant.
C. J Dousman, of Helena, for respondents.
Plaintiff appeals from a decree for defendant in an injunction suit. On July 8, 1939, plaintiff filed a complaint alleging, among other things, "that on or about the 1st day of July 1939, when there was less than 2,000 miners' inches of water available from water flowing in Flint Creek for diversion" into the Allendale canal, and at all times since that date, the defendant State Water Conservation Board had caused plaintiff and its stockholders to be deprived of irrigation water which they greatly needed and would otherwise have received; that on July 1st 1,100 miners' inches of water had been diverted into the ditch and at all times since there had been from 1,100 to 1,700 miners' inches flowing therein; that it all constituted natural flow of Flint Creek and not reservoired water, and that plaintiff's stockholders had the right to use all of such natural flow water to an amount not exceeding 2,000 inches. The prayer was for a restraining order and a permanent injunction restraining defendants from interfering with plaintiff's rights and "from diverting water from said Allendale ditch or canal for sale as reservoired water when there is less than 2,000 miners' inches of water entering said ditch or canal, at all times that the defendants are unable to show that water from said reservoir, and not the natural flow of said Flint Creek or its tributaries, is placed in said Flint Creek above the head of the Allendale ditch or canal, in which event, the defendants may sell from the waters in such ditch only so much water as is clearly shown to be water so diverted into Flint Creek from said reservoir, less a reasonable allowance for seepage, evaporation and other losses." It will not be necessary to detail further the allegations of the pleadings.
An order to show cause and restraining order was issued in accordance with the plaintiff's prayer, made returnable on July 17th. On that day it was stipulated that the hearing be continued until October 16th and that the restraining order be modified to permit the water pending trial to be distributed between the parties by the water commissioners under the court's instructions. No ruling was made upon the hearing of October 16th, but the restraining order was continued until trial of the cause.
On May 22, 1941, the trial court rendered findings of fact to the effect that on July 8, 1939, there was no water available in Flint Creek for plaintiff which did not constitute either natural flow needed by prior appropriators or storage water of the defendant Board; that the water delivered into the Allendale canal on that date was not natural flow of Flint Creek but was project water brought by the defendants from Rock Creek; that all water delivered into the Allendale canal between July 8th and July 17th was the defendants' property and that the plaintiff was not entitled to an injunction nor to receive water under the injunction on July 8, 1939, or between July 8th and July 17th, or between July 17th and September 1st, 1939. Conclusions of law in conformity were made at the same time. On May 31, 1941, plaintiff served and filed exceptions to the findings and conclusions but the court, without ruling upon them, entered judgment for defendants on June 2, 1941.
The length of the record, which consists of more than 1,250 pages, together with a great mass of exhibits offered in evidence and certified to this court, much of which is immaterial, has greatly complicated the work of the trial court and of this court and has delayed the disposition of the cause. At this point we shall state only the chief facts.
The defendant State Water Conservation Board has constructed a project for the impounding of waters of the East Fork of Rock Creek and their diversion over the divide into Flint Creek valley for sale to purchasers there. Rock Creek and Flint Creek are separate tributaries of the Clarke's Fork or Missoula River and the Rock Creek water would not otherwise be available in Flint Creek valley except for certain waters theretofore brought over by prior appropriators, which need not be mentioned further. The defendant Flint Creek Water Users' Association is a corporation organized to purchase water from the Board for distribution to its stockholders.
Prior to April 28, 1937, plaintiff owned an unadjudicated water right to 3,000 inches of the natural flow of Flint Creek together with the Allendale canal through which the appropriation was delivered to its stockholders. On that date plaintiff conveyed its said canal and water rights to the defendant Board, reserving however the right to the first 2,000 inches of its appropriation together with the right to receive it through the canal, and the defendant Board agreed to deliver to plaintiff water up to that amount whenever available therefor from the natural flow of Flint Creek. Certain of the plaintiff's stockholders and other land owners along or near the Allendale canal have become stockholders of defendant Water Users' Association so as to be able to receive project water by purchase from the defendant Board.
Whether the water in question present in the Allendale canal during the first eight days of July, 1939, or part of it, constituted natural flow of Flint Creek properly available for plaintiff's reserved right under its appropriation of water, or whether it was all project water brought over from Rock Creek watershed by the defendant Board, will be determinative of the chief issue, whether the defendant Board had the right to deprive plaintiff and its stockholders of the water which they admittedly needed for irrigation purposes. There is some discussion whether the plaintiff had paid for certain storage water purchased by it, but that matter has nothing to do with this controversy.
It is well settled that the primary rights to the use of water in a stream are those of appropriators of natural flow and that the burden is upon a subsequent storage claimant (Donich v. Johnson, 77 Mont. 229, 250 P. 963; Irion v. Hyde, 110 Mont. 570, 105 P.2d 666) or of one who uses a water course as part of his distribution system of developed or alien waters (Smith v. Duff, 39 Mont. 382, 102 P. 984, 133 Am.St.Rep. 587; Spaulding v. Stone, 46 Mont. 483, 129 P. 327; Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 17 P.2d 1074, 89 A.L.R. 200) affirmatively to disprove his interference with prior rights.
It is our conclusion, not only that the defendants failed to discharge that burden, but that they affirmatively proved their interference with plaintiff's rights. Certain of the defendants' witnesses testified that in average years no natural flow was available for plaintiff's canal in July, that 1939 was average or below average as to moisture, and that in their opinion the water then available must have been storage water. Indulging the very questionable assumption that in the absence of better evidence such testimony might have constituted a sufficient showing especially with reference to a watershed of the nature and extent of Flint Creek, it was overcome by substantial evidence introduced by the defendants themselves.
One item of defendants' evidence was a sheet of graphs showing a marked relationship between the amount of water brought over the divide by their project and the amount of water in Flint Creek at the Franz or Six-Mile gauge about twenty miles down stream from the divide and about ten miles above the head of the Allendale canal. These graphs indicate a delay of about four days between the water's arrival at the divide and its arrival at the Franz gauge, and it is reasonable to assume that an interval of two days further would intervene before the waters would arrive at the Allendale intake, about half of which would be above the Maxville gauge and the entry of Boulder Creek.
The Franz gauge and the Maxville gauge, another one about five miles below on Flint Creek, are maintained by the Geological Survey, Department of the Interior, and readings of the stream flow for both gauges for the summer of 1939 were placed in evidence. They show that although no streams entered and some diversions were made between the gauges, the lower one showed closely similar flows, those of Franz gauge from June 30th to July 8th in miners' inches being 1,360, 1,120, 1,160, 1,040, 1,120, 1,240, 1,440, 1,360 and 1,720, and those of the Maxville gauge on the same dates 1,680, 1,320, 1,320, 1,320, 1,320, 1,400, 1,560, 1,360 and 1,520.
A little below the latter gauge and about five miles above the Allendale intake, Boulder Creek enters Flint Creek and its flows on June 30th and the first eight days of July in miners' inches, together with the flows of two smaller creeks intervening, Gird and Byrne Creeks, were 3,070, 2,630, 2,230, 2,230, 2,230, 2,230, 2,220, 2,220 and 1,780. Thus the total flows below the junction on those days, found by adding the figures of the last two gauge readings, were 4,750, 3,950, 3,550, 3,550, 3,550, 3,630, 3,780, 3,580 and 3,300.
Entering the Allendale canal on the first eight days of July, 1939 were flows of 2,249, 1,179, 1,179, 1,120, 1,139, 1,139, 1,492 and 1,322 miners' inches respectively, and in Flint Creek flowing past the Allendale intake on those days were flows of...
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