Beaverhead Canal Co. v. Dillon Electric Light & Power Co.

• Decision Date: 21 April 1906
• Citation: 85 P. 880,34 Mont. 135
• Parties: BEAVERHEAD CANAL CO. v. DILLON ELECTRIC LIGHT & POWER CO. et al.
• Court: Montana Supreme Court

85 P. 880

34 Mont. 135

BEAVERHEAD CANAL CO. v. DILLON ELECTRIC LIGHT & POWER CO. et al.

Supreme Court of Montana

April 21, 1906

Appeal from District Court, Beaverhead County; Lew L. Callaway Judge.

Action by Beaverhead Canal Company against the Dillon Electric Light & Power Company and others. From a judgment in favor of plaintiff for less than the relief demanded, it appeals. Modified.

Robert B. Smith, for appellant.

W. B Barbour and Word & Word, for respondents.

HOLLOWAY J.

This action was brought to have determined the relative rights of the parties to the use of the waters of Beaverhead river and its tributaries. The appellant was plaintiff in the court below. The appeal is from that portion of the decree which awards to John B. Smith, who was one of the defendants, the prior right to the use of 250 inches of water.

Appellant is satisfied with the findings of fact returned by the trial court, but the contention is made in this court that the trial court erred in its conclusion of law No. 3, and in entering its decree in accordance with such conclusion. The court found that the plaintiff appropriated 4,254 inches of the waters of Beaverhead river in August, 1883. Findings No 4 and 5 are as follows: "(4) That Rattlesnake creek is, and was, at all times herein mentioned a tributary of Beaverhead river, and that the waters thereof flow into the Beaverhead river at all times above the head of plaintiff's canal; but this finding does not imply that the plaintiff is entitled to the spring of seepage waters rising in the channel of Rattlesnake creek, hereinafter mentioned. (5) That beginning with the year 1890, certain seepage or spring waters began to rise in Rattlesnake creek, and have continued to increase from year to year; that during the month of May, 1897, Cox and Pyle, the predecessors in interest of John B. Smith, built a dam across Rattlesnake creek, and by means of said dam and ditch constructed from said Rattlesnake creek known as and called the 'Cox and Pyle Ditch,' diverted from said creek certain springs and seepage waters arising in the bed of said creek on the Perkins and McLaughlin ranches, to the amount of 250 inches, and thereby appropriated the same; and the said defendant and his said predecessors have ever since said date made a beneficial use thereof."

The foregoing are all the findings made by the court which affect the rights of either of the parties to this appeal, and from these findings the court drew its conclusions of law No. 1 and 3 as follows: "(1) That the plaintiff is the owner, and entitled to the prior use of 4,254 statutory inches of the waters of Beaverhead river for irrigation, and other useful purposes, as of date August 15, 1883. (3) That John B. Smith is now, and he and his grantors and predecessors in interest have been since May, 1897, the owner and owners of, and entitled to the prior use of, 250 statutory inches, or 6 1/4 cubic feet, of the waters of certain spring or seepage waters arising in the bed of Rattlesnake creek on the Perkins and McLaughlin ranches, taken thereout and appropriated by means of his certain ditch, known as and called the 'Cox and Pyle Ditch,' tapping said creek; and leading to and upon his lands in the county of Beaverhead and state of Montana, mentioned in his answer on file herein."

In the answer of the defendant Smith it is alleged that the spring or seepage water appropriated by his predecessors in 1897 would not, if permitted to flow uninterruptedly, reach the head of plaintiff's ditch. This allegation is denied in the reply. As the court did not specifically make any finding upon the issue thus raised, it is urged by counsel for respondent that a finding in consonance with the allegation in the answer will be implied, and this is true provided such implied finding is not inconsistent with any express finding of the court. But we are not able to reconcile such an implied finding with findings No. 4 and 5 above. If the spring or seepage water, the prior right to the use of which defendant Smith makes claim, rises in Rattlesnake creek (finding No. 5), and Rattlesnake creek is a tributary of Beaverhead river, and the waters of Rattlesnake creek "flow into the Beaverhead river at all times above the head of plaintiff's canal" (finding No. 4), it would be an impossibility to determine that the particular water in Rattlesnake creek which is designated as spring or seepage water, would not flow down Rattlesnake creek to the head of plaintiff's canal if permitted to flow without interruption by some artificial means, just as the remaining portion of the water in such creek is determined by the court to do. Therefore we cannot presume that the trial court found in accordance with that theory; but, on the contrary, findings 4 and 5 above are not consistent with any other theory...