Brennan v. Jones

• Decision Date: 21 February 1936
• Docket Number: 7485.
• Citation: 55 P.2d 697,101 Mont. 550
• Parties: BRENNAN et al. v. JONES et al.
• Court: Montana Supreme Court

55 P.2d 697

101 Mont. 550

BRENNAN et al. v. JONES et al.

No. 7485.

Supreme Court of Montana

February 21, 1936

Rehearing Denied March 21, 1936.

Appeal from District Court, Ravalli County; Asa L. Duncan, Judge.

Statutory proceeding by J. A. Brennan, and others against Martin S Jones and another. From an adverse order, plaintiffs appeal.

Reversed and remanded, with directions.

Elmer E. Hershey, of Missoula, and Lew. L. Callaway, of Helena, for appellants.

O'Hara Madeen & Grant, of Hamilton, and Murphy & Whitlock, of Missoula, for respondents.

ANDERSON Justice.

This was a proceeding brought pursuant to the provisions of section 7150, Rev. Codes 1921, as amended by section 5 of chapter 125 of the Laws of 1925, by certain dissatisfied water users of Skalkaho creek, against Martin S. Jones appointed water commissioner by the district court to distribute the waters of the creek under a decree entered on July 29, 1916, adjudicating the rights of the water users from this stream and the Ravalli Land & Irrigation Company, a corporation.

Skalkaho creek rises in the Sapphire Mountains and runs in a generally western direction to the Bitter Root river into which it empties between Grantsdale and Hamilton. Settlers along this creek used water for irrigation, beginning with 1865. The stream runs in a narrow valley for several miles, then emerges from the hills and runs through the Bitter Root Valley to the river.

The complaint in this proceeding was filed by three water users. Brennan and Shuland were parties to the decree of 1916. Cash was the successor in interest of one Edwards, who was a party defendant. These complainants or their predecessors in interest were awarded certain rights under the decree. Many other rights were awarded under this decree which were prior in point of time to those of complainants.

In October, 1901, the Ravalli Land & Irrigation Company was incorporated for numerous purposes and objects, among others "to purchase, hold, develop, improve, lease, sell, or otherwise dispose of water and water powers and rights and the sites thereof." This corporation was the plaintiff in the water right action in which the decree was entered under which the defendant Jones was appointed water commissioner to distribute the waters of Skalkaho creek. Prior to the commencement of that action this corporation acquired by purchase certain of the early water rights apart from the lands to which they had theretofore been appurtenant. The corporation, by means of a ditch known as the "High Line ditch," diverted the waters under these rights thus acquired, or some of them, out of the Skalkaho watershed into the watershed of Girds creek, where these waters were disposed of by the corporation to various water users for irrigation purposes. Prior to the commencement of this suit, the corporation also acquired another ditch known as the "Ward ditch," which had theretofore been constructed, and certain appropriations made through that ditch by the original appropriators to irrigate lands within the Girds creek watershed. Likewise prior to the commencement of the water right action the same corporation constructed two ditches known as the "Republican" and "Hedge" ditches, which diverted waters from the Bitter Root river. The course of these two ditches is across Skalkaho creek in the valley of the Bitter Root.

It appears from the record that prior to the commencement of the original water right suit, the corporation entered into an arrangement verbally whereby certain of the water users whose rights were based on appropriations out of Skalkaho creek, and whose lands lay below the "Republican" and "Hedge" ditches, obtained from these two ditches an amount of water equal to their rights out of the Skalkaho, and in exchange the corporation diverted from the waters of the Skalkaho an amount of water equal to that delivered to the water users below the two company river ditches. The corporation also owns and uses two other small ditches which divert waters out of the Skalkaho watershed. All of the waters diverted for the use of the company from this watershed are used to irrigate lands within the Girds creek watershed.

The lands of the plaintiffs are located high up in the valley of the Skalkaho where the valley is narrow, and the lands irrigated by them lie in close proximity to the creek bed. The lands of complainants Brennan and Shuland lie above the points of diversion of all of the corporation's ditches. The lands of Cash lie below the point of diversion of the High Line ditch, but above the points of diversion of the other company ditches. The corporation is not, and at no time was, the owner of any lands on which the waters diverted from this creek are used for irrigation.

In the decree in the original water right suit the corporation was awarded certain water rights as successor in interest to the original appropriators. The court in that decree found the date of each right, the lands for the irrigation of which it was appropriated, the character of the land and the necessity for irrigation, the amount of the appropriation and diversion "by means of a ditch of sufficient size." With the exception of certain appropriations made through the Ward ditch, no mention of any ditches by name or location is found in the findings or decree.

The court as to the plaintiff in that suit found that it was a corporation, created with powers mentioned supra, which were a public use, and that the plaintiff was engaged in carrying on and conducting such business. It further found in the decree that "the plaintiff, Ravalli Land & Irrigation company, by sundry mesne conveyances, executed and delivered to its predecessors in interest and from said predecessors in interest to it, became and is now the owner of each of the water rights enumerated as having been appropriated by its predecessors in interest as of the date of said appropriations separate from the land for which the same was appropriated, and is entitled to the use thereof, and to sell, lease or rent the same, or the use thereof, for irrigation and other useful and beneficial purposes, upon lands for which same was appropriated or upon any other lands, in the usual and ordinary course of its business." It also appears that prior to the entry of this decree, a predecessor in interest of the Montana Power Company had been diverting, through an iron pipe, from the waters of Skalkaho creek some 65 inches which was used for supplying the citizens of Hamilton with water. The predecessor in interest of the latter company in this enterprise was a party defendant to the water right suit. However, no water right was awarded to that company. Subsequent to the entry of the decree a conveyance of 350 inches of water by the irrigation company was executed in favor of the Montana Power Company. No mention is made in the decree of this particular right or use of the water for the benefit of the citizens of Hamilton.

The water commissioner, in distributing the waters of the creek, distributed first to the irrigation company the amount of its prior rights, in accordance with the priorities of the decree, and also the amount of water adjudicated to various water users to whom the company was delivering an equal amount of river water from the "Republican" and "Hedges" ditches. During the irrigation season the water commissioner delivered continuously the amounts of these prior rights, so that unless there was a sufficient volume of water in the creek to supply continuously all of the prior adjudicated rights, the complaining water users would receive no water. It appears that the manner of taking waters both by exchange and under the rights which the irrigation company owned, was handled in the same way both before and after the commencement and termination of the water right suit. Much of the testimony developing these various facts was admitted over objection.

The plaintiffs in the court below and here contended that the irrigation company was without right to change the place of use and point of diversion of the waters under the rights which it had acquired; that it was without right to exchange water, and the water commissioner without authority to permit the exchange of water; that the irrigation company was without right to receive a continuous flow of water under these rights during the irrigation season; that, if plaintiffs were permitted to irrigate their lands a major portion of the waters used on the lands would ultimately return to the creek through the processes of drainage and percolation, so that 90 per cent. of the water placed upon the lands would be available for other water users down the stream. The latter contention was controverted by conflicting evidence.

After the conclusion of the hearing, in which a large mass of testimony was received, the trial court approved the manner of distributing the waters followed by the commissioner, and found against all the contentions of the plaintiffs. The appeal is from this order.

In general, this proceeding was in effect tried on the theory of the plaintiffs that the decree only adjudicated the matters appearing upon its face, and that the portion of the finding quoted supra, permitting the irrigation company to use these waters upon other lands, if considered as an approval of the use of these waters outside the watershed, was invalid as being in violation of section 7095, Rev.Codes 1921. The theory, in effect, upon which the defendants tried the proceeding was that all of these matters of which plaintiffs make complaint were being practiced long before the commencement of the action and had been continued without material change since the entry of the decree. Since they could have been litigated in the original water right...