Creek v. Bozeman Water Works Co.

• Citation: 38 P. 459,15 Mont. 121
• Parties: CREEK v. BOZEMAN WATERWORKS CO.
• Decision Date: 19 November 1894
• Court: United States State Supreme Court of Montana

38 P. 459

15 Mont. 121

CREEK v. BOZEMAN WATERWORKS CO.

Supreme Court of Montana

November 19, 1894

Appeal from district court, Gallatin county; Horace R. Buck, Judge.

Action by Rachel E. Creek against Bozeman Waterworks Company to enjoin defendant from diverting all the waters of a creek. Judgment was rendered for defendant, and plaintiff appeals. Reversed.

E. P Cadwell, for appellant.

Smith & Word, for respondent.

HARWOOD J. (after stating the facts).

The main question of law involved in this case may be stated by the following proposition: Where several individuals in succession have, pursuant to the provisions of the laws of this state regarding water rights, appropriated and acquired right to use the waters of a creek for certain beneficial purposes, such as the irrigation of their respective farms may the first appropriator, or his successor, after subsequent appropriations have been acquired, not only use the waters of the creek by him appropriated for his individual uses, but, in addition, after his individual use has been sufficed, convey the waters of such creek entirely away from its usual channel, and sell the same to the inhabitants of a city for their use, and thereby, without recompense, deprive the subsequent appropriators of the use of the waters of said creek, which they had enjoyed along with the first appropriator's former use of it? The answer to this question must be in the negative. The right acquired by an appropriator in and to the waters of a natural stream is not ownership of a running volume of the dimensions claimed, like the individual ownership of a chattel, so that it may be transferred corporally and carried away; but the right acquired by the appropriator is the right to use a certain quantity for necessary and beneficial purposes, such as supplying household needs, and the carrying on of some useful industry; and when such want is supplied, or the use is sub-served, all the rest of the creek, and all that returns thereto after such use, is subject to appropriation and use by another for some beneficial purpose. The same volume of water may therefore, in its flow down the creek supply many persons, even though the first appropriator claims the whole volume, and can at times, or even constantly, use the same for some industrial purpose, because such use does not usually swallow it, but leaves it available to others. By such an appropriation the first appropriator does not acquire a pre-emption of the whole creek, so that he or his successor may, after enjoying the use of it for some beneficial purpose, convey the creek away, and cut off subsequent appropriators. Therefore a subsequent right to use the same water, or so much of it as returns to the creek, and to use the waters of the creek when the first is not using the same, may be acquired. And therefore the trial court proceeded upon an erroneous view or theory of the law governing water rights, and the relation of various appropriations to one another, in holding that plaintiff, or her predecessor, could not acquire by appropriation any right to the use of the waters of said creek arising and flowing therein above defendant's ditches. It is well understood that a creek in these mountainous regions, flowing a volume of 250 inches, would suffice to irrigate more than one small farm. Not only so,--that there are considerable periods when a farmer does not irrigate his crops, while the water in an adjacent stream, which he is entitled to use so far as his needs demand, flows on forever, and is subject to the use of others. It appears that Lyman settled upon the creek in question in 1864, acquired 160 acres of land, and appropriated the waters of said creek to irrigate the same, to which right this defendant company has succeeded. Following the settlement and appropriation by Lyman for the purpose mentioned, plaintiff's husband acquired agricultural land, situate upon the banks of said creek, and likewise appropriated the water of said creek to irrigate his land. When the second appropriator came and viewed the situation, even conceding that Lyman had appropriated all and could use all of the waters of said creek at times for the irrigation of his...