Bean v. Morris

Decision Date03 February 1908
Docket Number1,423.
PartiesBEAN et al. v. MORRIS et al.
CourtU.S. Court of Appeals — Ninth Circuit

George W. Pierson, Walsh & Nolan, and T. J. Walsh, for appellants.

McConnell & McConnell and J. R. Goss, for appellees.

Before GILBERT, Circuit Judge, and DE HAVEN and HUNT, District Judges.

DE HAVEN, District Judge.

This is an appeal by certain defendants from a final decree in equity entered in the Circuit Court of the United States for the District of Montana. The bill of complaint alleges that the complainant is a citizen of Wyoming, and that in the year 1887 he acquired a water right of 250 inches, statutory measurement, by diverting the waters of Sage creek onto lands then occupied and now owned by him in that state; that such diversion was made in the state of Wyoming; that the defendants are citizens of the state of Montana, and that they had for three years prior to the commencement of this suit, during irrigation seasons, diverted the waters of said Sage creek and its tributaries at points on the stream above complainant's point of diversion; that said diversion was made by the defendants in the state of Montana; and that such acts of diversion resulted in damage to him in the sum of $2,500. The bill prayed for an injunction and for damages.

The defendants, who are the appellants here, filed an answer in which they denied that complainant ever made any appropriation of the waters of Sage creek, or that he ever diverted the waters of said stream to or upon the lands described in the bill of complaint, prior to the month of November, 1895. They admitted the diversion by them of the waters of Sage creek and its tributaries, as alleged in the complaint, but denied that complainant suffered any damage thereby. They further set forth that the alleged diversion by them was in Montana, and for the purpose of irrigating lands owned or occupied by them in that state. They alleged these lands to be unsurveyed lands, which would be subject to entry under the homestead laws when surveyed; that each of defendants is a qualified homesteader; and that he intends to enter the lands occupied by him as soon as the same shall be surveyed. The defendants further averred that each, relying upon his appropriation, cultivated his lands and improved them by the erection of houses, barns, etc.; that the lands are unproductive and valueless, unless they can be irrigated. As a further defense, they alleged an adverse use of the waters by them during the irrigation season for a period of more than ten years, and, further, that by reason of the peculiar condition of the bed of Sage creek and its tributaries the water sinks in places and rises in others and that in consequence of this the complainant has had as much water during the period of which he complains as he ever used.

One T N. Howell, who in his petition alleged himself to be a citizen of the state of Wyoming, was permitted to intervene all of the parties consenting thereto. The cause of action set forth in his petition was of the same general character as that alleged in the bill of complainant-- the intervener alleging that on August 1, 1890, he appropriated from the waters of Sage creek in the state of Wyoming 6 1/4 cubic feet per second; that his appropriation was prior to that of the defendants, but subject to the right of the complainant. He further alleged that he had enjoyed the use of the waters so appropriated by him without disturbance until about two years before the filing of his petition in intervention, when the defendants began to use the water of said stream in Montana to such an extent as to deprive him of the use of the waters so appropriated.

Answers were made to this petition identical in general character with the answers to the bill, and specifically putting in issue intervener's allegation of his Wyoming citizenship and averring, on information and belief, that he is a citizen of Montana.

The court, upon consideration of the evidence, filed its findings of fact, and made and entered its decree establishing the right of the complainant to 100 inches, miners' measurement, of the waters of Sage creek and its tributaries, of date April, 1887, and further adjudging that the intervener, Howell, is entitled to 110 inches of the waters of Sage creek and its tributaries, miners' measurement, of date August 1, 1890; that as between the complainant and intervener, the complainant is prior in time and prior in right; and that both complainant and intervener are prior in time to the defendants and prior in right. The decree further enjoined the defendants from in any manner interfering with the rights of the complainant and intervener as determined in the decree, and they were further commanded to allow, at all times when needed by the complainant and intervener, a sufficient amount of water to flow down to them to satisfy their rights.

The defendants, Bean, Bainbridge, Bennett, and S.W. and Wallace Bent, appeal.

1. At the date of the complainant's diversion of the waters of Sage creek in April, 1887, the statute of the then territory of Wyoming, approved March 11, 1886 (Laws 1886, p. 294, c 61), provided that one claiming a water right should file in the office of the county clerk of the proper county and in the office of the clerk of the...

To continue reading

Request your trial
17 cases
  • Public Utilities Commission of State of Idaho v. Natatorium Co.
    • United States
    • United States State Supreme Court of Idaho
    • November 6, 1922
    ...Falls Co. v. Snake River Irr. Co. (on rehearing), 24 Idaho 63, 133 P. 655; Haight v. Costanich, 184 Cal. 426, 194 P. 26; Bean v. Morris (C. C. A.), 159 F. 651.) language of a water right appropriation notice does not in itself make the owner a public utility. (Del Mar Water, Light & P. Co. ......
  • Pioneer Irr. Dist. v. American Ditch Ass'n
    • United States
    • United States State Supreme Court of Idaho
    • June 2, 1931
    ...727, 115 P. 488; Youngs v. Regan, 20 Idaho 275, 118 P. 499; Furey v. Taylor, 22 Idaho 605, 127 P. 676; Morris v. Bean, 146 F. 425; 159 F. 651, 86 C. C. A. 519; 221 U.S. 485, 31 703, 55 L.Ed. 821.) The water appropriation statutes of the state of Idaho, wherein they require the completion of......
  • Grover Irrigation and Land Company v. Lovella Ditch, Reservoir and Irrigation Company
    • United States
    • United States State Supreme Court of Wyoming
    • April 7, 1913
    ......394; Strickley v. Highland. Boy Co., 200 U.S. 527; Potlach Lumber Co. v. Peterson, 12 Ida. 769, 88 P. 426; Healy Lumber Co. v. Morris, 33 Wash. 490, 74 P. 681; Columbus W. W. Co. v. Long, 121 Ala. 243, 25 So. 702.) In the last case. cited it was said to be an admitted fact ... in this state for the purpose of irrigating lands lying. wholly within a neighboring state. ( Willey v. Decker, 11 Wyo. 496; Bean v. Morris, 221 U.S. 485; Atchison v. Peterson, 20 Wall. 507; Basey. v. Gallagher, id. 681; Kansas v. Colo., 206. U.S. 46; Rickey L. & C. ......
  • People of the State of California v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 6, 1950
    ...the issue must be determined according to the respective priorities and not otherwise. A long time ago this court said in Bean v. Morris, 159 F. 651, 655: "* * * and the broad principle which underlies the relative rights of appropriators from the same stream is, that whoever is first in ti......
  • Request a trial to view additional results
1 books & journal articles
  • Rethinking the Supreme Court’s Interstate Waters Jurisprudence
    • United States
    • Georgetown Environmental Law Review No. 33-2, January 2021
    • January 1, 2021
    ...that inferior courts with jurisdiction were obliged to assess 351. Bean, 221 U.S. at 487 (emphasis added); see also Bean v. Morris, 159 F. 651, 654–55 (9th Cir. 1908). Holmes’ nod to the potential difference legislation could make may have been an acknowledgement that states could, with the......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT