Beatty v. Murray Placer Min. Co.

• Decision Date: 11 February 1895
• Citation: 39 P. 82,15 Mont. 314
• Parties: BEATTY v. MURRAY PLACER MIN. CO.
• Court: Montana Supreme Court

39 P. 82

15 Mont. 314

BEATTY v. MURRAY PLACER MIN. CO.

Supreme Court of Montana

February 11, 1895

Appeal from district court, Jefferson county; Thomas J. Galbraith Judge.

Action by George Beatty against the Murray Placer Mining Company and others. There was a judgment settling the rights of the parties, and from that part of the judgment in favor of defendants Davis, Thompson, and Julia Reynolds, as against the Murray Placer Mining Company, the company appeals. Affirmed.

Toole & Wallace and Massena Bullard, for appellant.

Wade & Barrows, for respondent.

HUNT J.

The plaintiff sued the defendant the Murray Placer Mining Company and 16 others to determine the right to the use of certain waters of Beaver creek, Jefferson county and to have established by decree the relative rights of all parties to the suit, to the use of said waters. Separate answers claiming appropriations and use, were made by the defendants Davis, Thompson, and Julia Reynolds. The defendants Samuel T Hauser, Anton M. Holter, John Murray, and H. D. Hauser jointly answered, denying plaintiff's appropriations at the dates alleged in his complaint, and the priority of the same over their rights, and setting up prior rights in certain of themselves. Special issues were submitted to a jury, and 59 questions answered by them. The court revised these findings, made certain modifications, and afterwards entered a decree establishing the respective rights of all parties.

Upon May 23, 1892, the appellant filed its statement on appeal, which was afterwards, on the 18th of July, settled as correct. There appears in the record, between the conclusion of the testimony of a witness and the instructions of the court to the jury, a "specification of errors," in which are recited the particulars wherein the evidence is claimed to be "insufficient to sustain the findings of the jury and the modifications thereof by the court, and the decree of the court," so far as the same relate to certain ditches belonging to certain of the defendants. The appeal in the case is from the judgment in favor of defendants Davis, Thompson, and Julia Reynolds, adjudging that said defendants are entitled to the use of certain of the waters of Beaver creek prior in time to the right and appropriation of the appellant. There is no bill of exceptions in the record, no motion for a new trial, and no order denying such a motion. It is therefore impossible for the court to consider the alleged error of insufficiency of the evidence to sustain the findings of the jury and court. Porter v. Clark, 6 Mont. 246, 11 P. 638; Mining Co. v. Hayes, 6 Mont. 32, 9 P. 581.

Appellant in its brief, makes a point against oral transfers of ditches and water rights; but there being nothing properly before the court to show that there were any such oral transfers, independent of a transfer of the land to which the water...