City of Helena v. Hale

• Decision Date: 20 March 1909
• Citation: 100 P. 611,38 Mont. 481
• Parties: CITY OF HELENA v. HALE.
• Court: Montana Supreme Court

100 P. 611

38 Mont. 481

CITY OF HELENA v. HALE.

Supreme Court of Montana

March 20, 1909

Appeal from District Court, Lewis and Clark County; Thos. C. Bach Judge.

Action by the City of Helena against Robert S. Hale. From the judgment and from an order denying a new trial, defendant appeals. Reversed and remanded.

Massena Bullard and Wm. Wallace, Jr., for appellant.

Edward Horsky, for respondent.

SMITH J.

This is an appeal, by the defendant below, from an order denying him a new trial and from a decree of the district court of Lewis and Clark county, granting plaintiff a perpetual injunction restraining the defendant "from charging or allowing or permitting to be charged the waters flowing in Last Chance gulch through the flume or storm sewer described in the complaint *** with sand, tailings, or débris from the mining operations or mining ground of the defendant," and also awarding $250 damages against the defendant. The cause was tried to the court alone.

The complaints, original and supplemental, set forth that the plaintiff has constructed a flume or storm sewer through the city of Helena at great expense, and that the defendant has negligently caused to be deposited large quantities of sand débris, and tailings in the waters used by him for placer mining purposes above the city, and negligently permitted the water so charged by him with sand, débris, and tailings to flow into and through the sewer, filling the same to such a depth as to injuriously affect its usefulness as a water course and wear out the material of which it is constructed thus causing the city to expend large sums of money for clearing out and repairing the sewer, to its damage in the sum of $10,000. The answer contains a categorical denial of the foregoing allegations, and, in addition thereto, alleges affirmatively, inter alia, that in the year 1870, long prior to the incorporation of the city, the defendant acquired a right of way for, and privilege of, running water from his placer mines through the natural channel of Last Chance gulch in the condition in which the same was after being used for mining, and has used and enjoyed such right of way and privilege ever since openly, notoriously, and adversely to all persons whomsoever; that since 1873 Wm. A. Chessman has held the right to the use of the waters from a point above the city, and has "obligated and bound himself to take care of said muddy waters at and below said [point] and is now under obligation so to do"; that at the time defendant acquired his right the gulch was of sufficient grade to carry off the waters without injury to any one, but that the city had so changed the course of the flow by means of the flume as to reduce the grade, "so that it was not capable of carrying mining water to the extent that it was capable of carrying mining water when allowed to run through the natural channel, but that, even as so changed and constructed, said flume would have been sufficient to have carried and conducted said waters without injury or damage to the city if the flume had been kept clean and clear of obstruction, but that the city permitted the said flume to be obstructed" with rubbish, "by reason of which the flow of water was checked, obstructed, and impeded, *** and this defendant alleges that the obstruction or overflowing of water through said flume has not been by reason of any fault of defendant, but by reason of the fault of the plaintiff in so changing and lessening the grade of the stream and in permitting the same to be obstructed." These...