Donich v. Johnson

• Decision Date: 25 October 1926
• Docket Number: 5936.
• Citation: 250 P. 963,77 Mont. 229
• Parties: DONICH et al. v. JOHNSON et al.
• Court: Montana Supreme Court

250 P. 963

77 Mont. 229

DONICH et al. v. JOHNSON et al.

No. 5936.

Supreme Court of Montana

October 25, 1926

Appeal from District Court, Powell County; George B. Winston, Judge.

Action by George Donich and others against G. W. Johnson and others. Judgment for defendants, and plaintiffs appeal. Remanded with directions.

W. E Keeley, of Deer Lodge, for appellants.

S. P Wilson and Scharnikow & Paul, all of Deer Lodge, for respondents.

CALLAWAY C.J.

Race Track creek, a tributary of the Deer Lodge river, has its source in the mountains on the west side of the Deer Lodge valley in the counties of Powell, Granite, and Deer Lodge. In these mountains, at an elevation of about 7,500 feet, lie a number of lakes which discharge their waters directly, or eventually, into Race Track creek, conceded to be an adjudicated stream in virtue of a decree entered in 1890, which determined that the parties to the suit severally were entitled to quantities of water aggregating not quite 6,300 inches.

The plaintiffs are the owners of lands requiring irrigation, which could be served by Race Track creek, were the waters of the stream sufficiently copious. Some of them are the owners of decreed rights, but these are insufficient for their needs. Conceiving that an ample supply of water might be obtained if the surplus flood and waste waters of the stream were impounded and stored, the plaintiffs at various times have constructed dams at the outlets of the several lakes, and by means of the reservoirs thus created have stored water which they have sought to use. Their method of procedure was to close the headgates of the reservoirs in the late fall, releasing the water during the next summer into the channel of Race Track creek, then diverting water from the channel into their irrigating ditches which run thence to their lands.

The ditches of all the parties to this action are some 14 or 15 miles below the lakes.

The ever present need of water in irrigating seasons brought friction between the defendants, all of whom are the owners of decreed rights, and the plaintiffs, over the so-called lake rights, and this lawsuit resulted. The court found for the defendants to the effect that the plaintiffs had not made any appropriations by means of their reservoirs and have no right to impound in or use water from the lakes. From that judgment the plaintiffs have appealed.

Montana has many millions of arid, irrigable lands. With irrigation these instead of arid would be teeming acres. Experience has shown that lands of this character, now mere grazing lands, with irrigation prove productive to a high degree. Montana also discharges across its borders flood and surplus waters more than sufficient annually to cover its irrigable lands. When this water is impounded and conserved these vast areas, now fit only for ranging live stock, will ascend to the higher adaptability of supporting contented homes. Every acre of land in this state susceptible to irrigation should be cultivated. Allen v. Petrick, 69 Mont. 373, 222 P. 451.

We observed a short time ago that "it is to the interest of the public that water be conserved for use rather than be permitted to go to waste, to the end that the arid lands of the state may be put under irrigation and thus be made productive." Anaconda National Bank v. Johnson, 75 Mont. 401, 244 P. 141. Between irrigating seasons the water of Montana's numerous streams mostly goes to waste, and, generally speaking, in high water time, which usually is in June, tremendous quantities of flood waters run away without serving any useful purpose. The construction and maintenance of secure reservoirs for the conservation of these waters, therefore, is of very high public importance. Kinney on Irrigation & Water Rights (2d Ed.) § 838. This the framers of our Constitution recognized in no uncertain terms. Section 15, art. 3, of the Constitution provides in part:

"The use of all water now appropriated, or that may hereafter be appropriated for sale, rental, distribution, or other beneficial use, and the right of way over the lands of others, for all ditches, drains, flumes, canals, and aqueducts, necessarily used in connection therewith, as well as the sites for reservoirs necessary for collecting and storing the same, shall be held to be a public use."

The language of this section, as was said in Spratt v. Helena Power Transmission Co., 37 Mont. 60, 94 P. 631, in the light of our history and natural conditions in a region where the conservation and use of water is all-important to its development and progress, is a mandate from the sovereign people to the courts, and should receive a broad construction. The right to condemn land for a reservoir for the storing of water was declared in Helena Power Transmission Co. v. Spratt, 35 Mont. 108, 88 P. 773, 8 L. R. A. (N. S.) 567, 10 Ann. Cas. 1055. The right to impound and store water has been recognized repeatedly in other opinions. Kelly v. Granite Bi-Metallic C. Min. Co., 41 Mont. 1, 108 P. 785; Ryan v. Quinlan, 45 Mont. 521, 124 P. 512; Jeffers v. Montana Power Co., 68 Mont. 114, 217 P. 652; Anaconda National Bank v. Johnson, supra. Indeed, the practice of impounding water in reservoirs has obtained in this state from the earliest days. It was essential in placer mining carried on by means of the ground sluice. As early as 1877 the Legislature passed an act concerning dams and reservoirs to the end that public safety might be preserved. Laws 1877, p.

221. This act, substantially, was carried forward until 1917, when it was amplified somewhat. Pol. Code 1895, §§ 3440-3453; Rev. Codes 1907, §§ 2138-2151; chapter 168, 1917 Session Laws, p. 417. With the amplification of 1917 it appears in sections 2658-2671, R. C. 1921; and see sections 7117, 7118, R. C. 1921.

Since 1885 it has been the law, if it was not before, that-

"The water appropriated may be turned into the channel of another stream, or from a reservoir into a stream and mingled with its waters, and then reclaimed; but in reclaiming it, water already appropriated by another shall not be diminished in quantity, nor deteriorated in quality." Section 7096, R. C. 1921.

While not disposed to question the proposition set forth above, counsel for respondents insist that reservoirs should not be permitted in the course of, or at the headwaters of, adjudicated streams. This argument cannot be admitted.

It is true that reservoirs must be constructed and used so as not to disturb the rights of prior appropriators. But the utmost prior appropriators may rightfully demand is that he who constructs and uses a reservoir shall not interfere with their use of the natural flow in the creek to the extent of their appropriations. Ryan v. Quinlan, supra; Anaconda National Bank v. Johnson, supra. What is the extent of their appropriations? Manifestly where one's rights have been adjudicated the amount awarded him in the decree must be taken to be the amount of his appropriation, unless he shows an appropriation subsequent to the decree.

"The most that the ditch owners are entitled to claim at any time is that the amounts to which they are respectively entitled shall flow to the headgates of their ditches. Sayre v. Johnson, 33 Mont. 15, 81 P. 389. They are entitled to nothing more." Kelly v. Granite BiMetallic C. Min. Co., supra.

In an action between prior appropriators and a subsequent reservoir user, the burden is cast upon the latter to show that by the construction, maintenance, and use of the reservoir he does not interfere with the rights of the prior appropriators.

With these principles in mind we proceed to examine the conditions presented by the record.

The owners of rights under the decree are the prior appropriators as against those who claim lake or reservoir rights. Two subsequent rights were allowed by the court in this case, that of Pozega for 100 inches in 1901, and defendant Johnson for 100 inches in 1904, but these two do not complicate the situation, although prior to some claimed reservoir rights.

It is incumbent upon the plaintiffs then, who may be termed the lake users, to sustain the burden of showing that by the construction and maintenance of the reservoirs in the lakes, and by the use of the water impounded, they do not infringe upon the rights of the prior appropriators. It is conceded that the prior appropriators do not use the water from November 1 to April 1 of each year. The creek has many sources of supply other than the lakes in question, which furnish water for use between, as well as during, irrigating seasons. There has been little irrigation done in April. Generally there is a surplus of water at times during the month of June, usually the high water month in that locality. The exceptions to this general rule have been rare. During some years there is high water in May; during that month, before a water commissioner assumes his duties upon the creek, the ditch owners take all the water they can get, regardless of the decree. (During three years only in the last twenty has a water commissioner been needed before June 1.) As a defendant testified, "the decreed users kind of divided the surplus water among themselves." There would be no objection to this practice if it did not work to the disadvantage of others.

That the waters of Race Track creek coming through or from the lakes are subject to storage during the months of November, December, January, February, and March is clear. There is nothing in the record to indicate that during the years the reservoirs have been in use there was ever any shortage in the creek for irrigating purposes during the month of April; on the contrary, it is fairly inferable from the record that considerable water has gone to waste during that month each year.

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