Conrow v. Huffine
| Citation | 138 P. 1094,48 Mont. 437 |
| Parties | CONROW v. HUFFINE ET AL. |
| Decision Date | 26 January 1914 |
| Court | Montana Supreme Court |
Appeal from District Court, Gallatin County; J. M. Clements, Judge.
Action by S. H. Conrow against Franz Huffine and others. Decree for defendants, and plaintiff appeals. Remanded, with directions.
Walter Aitken, of Belgrade, for appellant.
John A Luce and Geo. D. Pease, both of Bozeman, for respondents.
This action was brought to have determined the extent of the respective rights of the plaintiff and the defendants to the use of the water flowing in Bear creek, in Gallatin county and the order of their priorities. The stream is formed by two branches, which are referred to in the pleadings and evidence as the east and west forks. The former has its source in the northeast quarter of section 28, township 2 north, range 5 east, and the latter in the southeast quarter of section 21, same township and range. After flowing south through section 33, the branches unite in section 4, township 1 north, range 5 east, forming the main stream, which flows thence toward the southwest through sections, 5, 8, and 7. The defendants Gervais, Merritt, Ballard, and Brownell though served with summons, did not appear. Plaintiff is the owner of sections 21 and 28 and at different times has had under irrigation, from Bear creek and other sources, about 68 acres, consisting of the areas of lowlands lying along both branches of the stream. The lands owned by the defendant Gee consist of 200 acres, lying in sections 33 and 4 above the junction of the two branches. Not more than 65 acres of them are susceptible of irrigation from Bear creek. At the time of the trial the area under irrigation was about 45 acres. Defendant Beckhorn owns about 80 acres, lying partly above and partly below the junction. At the time of the trial he had under irrigation from Bear creek about 9 acres, though there is an additional area of 20 acres susceptible of irrigation, when he has a sufficient supply of water. The defendant Huffine's lands lie on both sides of the main stream below the junction, in sections 7 and 8. The areas under irrigation by him at the time of the trial covered about 56 1/2 acres. The plaintiff claims the right to the use of 100 inches, appropriated and diverted by his predecessors or himself from the two branches at different times from October 1, 1877, to July 1, 1885. The defendant Huffine dates his right from May 1, 1868. The appropriation under which he claims, and which is referred to in the record as the Moore right, was made by the construction of a ditch on the east bank of the main stream in May, 1868, by a predecessor who had made settlement upon a portion of the lands now owned by this defendant. The water was first diverted and used to irrigate lands on the east side of the stream. In all there were about 36 acres, including an area of a little more than 14 acres, which is not now owned by Huffine. Subsequently, but prior to the spring of 1878, the exact date not being disclosed, a second ditch was taken out on the west side by a mesne grantee of the original appropriator. This was used to convey water to all the irrigable lands now owned by Huffine on the west side, amounting approximately to 34 acres. The defendants Gee and Beckhorn each claims under the same appropriation, alleging interests therein by mesne conveyances from the original appropriator. They also each claim under other appropriations made by themselves on July 1, 1885. At the trial the plaintiff conceded the priority of defendants' rights, so far as they appeared to have been derived from the Moore right, and there is a present necessary use for the water diverted by it, but endeavored to show that the actual necessity served by this right at any time prior to plaintiff's oldest appropriation required a much smaller amount than the defendants claimed. The court made special findings of the amounts and dates of all the respective claims and entered a decree accordingly. It found that the appropriation of May 1, 1868, amounted to 90 inches; that the defendants are the owners of this right in undivided interests as tenants in common, Huffine having one-half, Gee one-third, and Beckhorn one-sixth; and that they are entitled to use, respectively, 45, 30, and 15 inches. The plaintiff has appealed from the decree and an order denying his motion for a new trial.
No complaint is made of the findings touching the claims of any of the parties other than those based on the Moore right. As to these complaint is made that the total amount awarded to the defendants is in excess of that actually needed for their efficient use at the time the appropriation was made, or thereafter, at any time prior to the date of plaintiff's appropriations. Counsel contends that the evidence is insufficient to justify the findings in this regard. Whether this contention has merit is the only question he has submitted for decision.
There is no controversy in the evidence that at ordinary stages during the irrigating season the flow of the stream does not exceed 100 inches. Nor is there any question that the ditch taken out in 1868 diverted substantially the entire flow. The same may be said of the west side ditch. The area irrigated on both sides did not at any time, prior to plaintiff's earlier appropriations, exceed approximately 70 acres. This area was never increased, because it included all the lands susceptible of irrigation from the stream on either side of it. Plaintiff made appropriations in 1878, 1879, and 1882, amounting in all to 35 inches. When Huffine acquired his interest in the Moore right does not appear. He never acquired more than an undivided one-half interest. On February 25, 1899, Moore conveyed to one Axtell an undivided one-half interest. This interest was subsequently acquired by the defendants Gee and Beckhorn; the former acquiring an undivided one-third and the latter an undivided one-sixth interest. The findings are silent as to the date of the construction of the ditch on the west side of the stream to utilize the Moore right on the lands on that side. Counsel, therefore, argues that, since this is so, the use of any water on that side under the Moore right was excluded from consideration, and that, while the court properly awarded to defendants the proportionate amounts they are entitled to, the gross amount is too large because the evidence clearly discloses that the Moore right was never used to irrigate to exceed 36 acres on the east side. To make the statement in another way: Since under the findings the Moore right should have been limited in amount by the necessity for its use on the lands on the east side only, and, since the extent of the defendants' respective interests must be determined by the extent of this use, the total amount found for all these rights, after making due allowance for a sufficient head to render the use effective, should have been limited to 40 or 50 inches. Again he says: Conceding that the total amount of the awards made to the defendants should be limited to the necessary use of the Moore right on both sides of the stream, the award is nevertheless excessive because it appears without controversy that at no time in the history of the Moore right could there have been actual necessity for the use of more than 60 inches, because all the lands irrigated by it never exceeded, or could have exceeded, 56 1/2 acres; one inch per acre being the average amount required to irrigate any of the lands upon which the water has heretofore been used.
We do not think the silence of the findings touching the west side ditch is to be given the significance claimed by counsel. The court, in finding as it did that Huffine is entitled to the use of 45 inches, evidently took into consideration the gross amount of land susceptible of irrigation on both sides of the stream; otherwise the finding that the extent of the Moore right was 90 inches cannot be explained. For it may not be supposed that the court entertained the notion that this amount was ever necessary to irrigate the comparatively small area of 36 acres on the east side. In any event, under the doctrine of implied findings, nothing appearing to require the contrary conclusion, the presumption will be indulged that the court found in favor of the Moore right upon all the issues in this connection not covered by the express findings. Bank of Billings v. Gagnon, 25 Mont. 268, 64 P. 664. The right to use...
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