City of Helena v. Rogan

• Decision Date: 29 April 1902
• Citation: 68 P. 798,26 Mont. 452
• Parties: CITY OF HELENA v. ROGAN et al.
• Court: Montana Supreme Court

68 P. 798

26 Mont. 452

CITY OF HELENA v. ROGAN et al.

Supreme Court of Montana

April 29, 1902

Appeal from district court, Lewis and Clarke county; J. M. Clements Judge.

Condemnation proceedings for the purpose of establishing a water supply system by the city of Helena against Hugh J. Rogan, the Ames Realty Company, and others. From a judgment for defendant the Ames Realty Company, plaintiff appeals. Affirmed.

A complaint by a city for the condemnation for a water supply of water rights in a stream, alleging that defendants "claim to be the owners of and entitled to the right" of a designated quantity of water of the stream "for irrigating purposes" in a certain county, is fatally defective for failing to describe the lands, the number and size of the ditches thereon or appurtenant thereto, and the place of diversion, though it would involve great labor and expense to so describe the property.

This cause is before us on appeal from the judgment of the district court in favor of the defendant Ames Realty Company and against the plaintiff. The plaintiff, in 1900, brought proceedings in the district court of Lewis and Clarke county in eminent domain against 176 defendants, including the Ames Realty Company, to condemn certain property. The complaint alleges that on the 3d day of December, 1900, the city council of the city of Helena duly passed and adopted an ordinance for the purpose of acquiring by condemnation 350 inches of the water and water rights of McClellan creek, and those water rights of Prickly Pear creek comprising the waters of said McClellan creek, for the purpose of procuring a water supply for said city, which shall own and control said supply, and devote the revenues derived therefrom to the payment of the debt incurred therefor; that the only provision of the ordinance describing what water and water rights should be condemned is as follows: "Sec. 3. That of the water and water rights of said McClellan creek and its tributaries, situated in Jefferson county, state of Montana and all those water rights of Prickly Pear creek, situated in Jefferson and Lewis and Clarke counties, state of Montana comprising the waters of said McClellan creek, three hundred and fifty (350) inches be condemned for the purpose of procuring a water supply for said city of Helena, which shall own and control the same, and devote the revenues derived therefrom to the payment of the debt incurred therefor." A particular description of McClellan creek, alleging that it is a tributary of Prickly Pear creek, and situated wholly in Jefferson county, is then set forth. Then follows a particular description of Prickly Pear creek from its confluence with McClellan creek to its mouth at the Missouri river. From the description it is seen that the distance from the confluence of McClellan creek to the boundary line between Lewis and Clarke county and Jefferson county is about 1 4/5 miles, and that the remainder of Prickly Pear creek to its intersection with the Missouri river is wholly in Lewis and Clarke county; further, that all the water rights sought to be condemned by this action are expressly described as being only those taken from that portion of Prickly Pear creek exclusively in Lewis and Clarke county. It is further averred that "said 350 inches of water and water rights sought to be taken is a part of and does not include all of the waters of McClellan creek and those water rights of Prickly Pear creek comprising the waters of said McClellan creek." It is alleged "that the city of Helena has not now, and never has had, a water supply or water system of its own; that the use to which said water and water rights are to be applied is a public use, duly authorized by law, to wit, the procuring of a good, pure, wholesome, and abundant supply of water for the said city of Helena and its inhabitants; *** and that the taking of 350 inches of water and water rights is necessary to such use." Paragraph 16 of the complaint is as follows: "On information and belief [it is alleged] that each of the above-named defendants has or claims to have some right or interest in those water rights of Prickly Pear creek in Lewis and Clarke county aforesaid, which comprise the waters of said McClellan creek, each of which said rights or interests are herein after more particularly described." Following paragraph 16, the complaint contains a description of the respective interests of each of the 176 defendants to the right to the use of the waters of said Prickly Pear creek in Lewis and Clarke county, and, in as much as the only description pertinent to this inquiry is that of the Ames Realty Company there is set forth only that portion of the complaint describing said company's interests, viz., it is alleged "on information and belief that the said defendants Ames Realty Company, Henry Sepple Ames, Bradford Improvement Company, Mary C. Bradford, and Lucy V. S. Ames are or claim to be the owners of and entitled to the right to the use of about two hundred and seventy-five (275) inches of the waters of said Prickly Pear creek in said county of Lewis and Clarke, dating from about the 1st day of April, 1866, for irrigating purposes in said county; and that, by reason thereof, of the said three hundred and fifty inches of water hereby sought to be taken, they are or claim to be the owners of and entitled to the right to the use of about two and one-half inches of the said waters of Prickly Pear creek comprising the waters of said McClellan creek, dating from said date, and for said purpose." It is further alleged "on information and belief that the said defendants Ames Realty Company, Mary C. Bradford, and Lucy V. S. Ames are or claim to be the owners of and entitled to the right to the use of about one hundred and sixty-seven inches of the waters of said Prickly Pear creek in said county of Lewis and Clarke, dating from about the 6th day of April, 1866, for irrigation purposes in said county, and that by reason thereof, of the said 350 inches of water hereby sought to be taken, they are or claim to be the owners of and entitled to the right to the use of about one and one-half inches of the said waters of Prickly Pear creek comprising the waters of said McClellan creek, dating from said date, and for said purpose." It is further alleged in the complaint "that each and every and all of the said water rights of the above-named defendants hereinbefore set for the are more particularly designated and described by the respective ditches of said defendants carrying and conveying said waters from that portion of said Prickly Pear creek in said Lewis and Clarke county, hereinbefore described, to and upon their said ranches in said county of Lewis and Clarke." The prayer of the complaint is for the relief usually sought in condemnation proceedings.

Edward Horsky, Toole & Bach, and R. Lee Word, for appellant.

J. Miller Smith and Massena Bullard, for respondents.

MILBURN, J. (after stating the facts).

Numerous points have been argued and submitted, the attack being on the sufficiency of the complaint. They are as follows:

1. Has the city the right to acquire by condemnation proceedings water rights for the purpose of establishing a water supply system for the purposes set out in the complaint? We think it has. House bill 203 of 1897, amending section 4800 of the Political Code of 1895, is entitled "An act to amend section 4800 of the Political Code relative to legislative powers of cities and to enable cities and towns to acquire by purchase, construction or condemnation proceedings water plants, water supplies, franchises, public buildings and sewers." Section 4800: "The city or town council has power: *** (64) *** For the purpose of providing the city or town with an adequate water supply for municipal and domestic purposes, the city or town council shall procure and appropriate water rights and title to the same and the necessary real and personal property to make said rights and supply available, by purchase, appropriation, location, condemnation or otherwise." Laws 1897, p. 203. The above provision, which has been in force since March 8, 1897, plainly gives the city the power sought to be exercised in this suit. The act referred to is the last utterance of the will of the legislature on the subject, and controls.

2. Has the district court of Lewis and Clarke county jurisdiction to try and determine this suit under the allegations of the complaint? We think it has. The plaintiff seeks to condemn pro tanto the respective water rights of the defendants. Although the language of the complaints is very far from explicit, there seems to be an attempt to allege that each of the defendants owns a water right appurtenant to lands in Lewis and Clarke county, --a right to the use of water running in Prickly Pear creek. It also appears that McClellan creek, which lies entirely in Jefferson county, is a tributary of Prickly Pear creek, and that plaintiff desires to divert from said McClellan creek 350 inches of water. Each person owning a valid water right in Lewis and Clarke county is the owner of a certain incorporeal hereditament, to wit the right to have the water flow in Prickly Pear creek from the head thereof, and from the head of each tributary thereof above his place of diversion, in sufficient quantity to the head of his ditch or place of diversion, and to have it of such quality as will meet his needs as protected by his water right; that is, he owns an easement in the stream and its tributaries above his point of diversion. He also has the right to require appropriators subordinate to him and his water right, who have appropriated and who take water from the stream or its tributaries below his point of diversion, to forbear using such water when such use...