Featherman v. Hennessy

Decision Date18 May 1911
PartiesFEATHERMAN et al. v. HENNESSY et al.
CourtMontana Supreme Court

43 Mont. 310

FEATHERMAN et al.
v.
HENNESSY et al.

Supreme Court of Montana.

May 18, 1911.


Appeal from District Court, Granite County; Geo. B. Winston, Judge.

Action by John A. Featherman and others against D. W. Hennessy, George W. Morse, and others. From a decree for plaintiffs, defendant Morse appeals. Affirmed.


Geo. A. Maywood, for appellant. Rodgers & Rodgers, Wingfield L. Brown, J. Shull, J. H. Duffy, and W. E. Moore, for respondents.

BRANTLY, C. J.

This action was brought by plaintiffs against 36 defendants, including appellant herein, to have adjudicated the rights of the parties, respectively, to the use of the water flowing in Flint creek, in Granite county. Appeals by the defendant James McGowan, from the decree and an order denying his motion for a new trial, have heretofore been heard and determined. See Featherman v. McGowan, 42 Mont. 535, 113 Pac. 751. Reference is made to the opinion delivered on those appeals, for a statement of the issues tried. In his answer the appellant claims rights under separate appropriations, of different amounts at different dates, from April 1, 1870, up to October 6, 1883. No complaint is made of the action of the court in determining any of them, except the last, which consists of 1,500 inches, alleged to have been appropriated by appellant and one Dunkelberg on the date last mentioned, for the purpose of furnishing power to operate a grist mill, then owned by appellant and said Dunkelberg, but now, together with the water right, owned exclusively by the appellant, and to irrigate certain lands belonging to the appellant. So far as they concern this right, the findings and conclusions of the court are the following:

“Finding No. 1. *** That each of the plaintiffs and each of the answering defendants herein, and they and each of their grantors and predecessors in interest, have since the respective dates of the several appropriations mentioned in these findings to the present time used the amounts of water, mentioned in these findings, and which are found to have been appropriated and diverted by them and each of them, respectively, for irrigating their several lands and for mining, domestic and other useful purposes, and the use of said waters to the amount stated was and is necessary for the purposes mentioned. ***

“Finding No. 49. *** That on or about the 6th day of October, 1883, the defendant George W. Morse and his grantors and predecessors in interest appropriated and diverted from said Flint creek, by means of a ditch of sufficient capacity to carry the same 1,500 inches of the waters of said Flint creek, for the purpose of running a flour mill and a mill for chopping feed; and that said mill has since said time been operated by the said defendant George W. Morse about two weeks in June of each year, and in the months of September and October of each year. That the said waters so appropriated and diverted on October 6, 1883, were not appropriated or diverted or used for any other...

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