Featherman v. Hennessy

• Citation: 115 P. 983,43 Mont. 310
• Parties: FEATHERMAN et al. v. HENNESSY et al.
• Decision Date: 18 May 1911
• Court: Montana Supreme Court

115 P. 983

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 P. 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 purpose than for operating said flour mill and mill for chopping feed; and after said use said waters flowed back into said Flint creek a very short distance below said mill, except that on or about April 1, 1905, the said defendant diverted and used about 90 inches of the said 1,500 inches of water for the purpose of irrigating certain lands belonging to him and described in his answer herein. And the use of said water must be confined in the future to such purposes and to the manner and times in and at which it has heretofore been used except that such may be changed to some other without injury to any other party to this action. When the said George W. Morse is not using said water for the purpose of operating said mill, the said 1,500 inches of water so appropriated and diverted by him shall be available to any and all junior appropriators on said creek, excepting said 90 inches used by said defendant for irrigating his said lands, which said 90 inches of water the said defendant is and shall be entitled to for irrigating his said lands and as of date April 1, 1995.

"Conclusions of Law. *** 50. That the defendant George W. Morse, for the purpose of irrigating his said land and for other useful and beneficial purposes, is the owner and entitled to the use of 1,500 inches of the waters of said Flint creek as of the date of October 6, 1883, for the purpose of operating the mill mentioned in findings of fact No. 49. Reference is hereby made to said finding of fact No. 49 for the purpose of making it part of this conclusion of law No. 50, and for a more particular statement of the rights of said defendant Morse, and the manner and extent of his ownership and use of, in and to the said 1,500 inches of the waters of said Flint creek."

The decree is in conformity with these findings and conclusions, and declares the restrictions subject to which all the parties are entitled to the use of the amounts awarded to them. It requires the appellant to limit the use of the 1,500 inches awarded to him subject to the rights of prior appropriators, to the times specified in finding 49 and exclusively for the purpose of generating power for his mill, except that, subject to a like restriction in favor of other rights used for agricultural purposes, he is permitted to use 90 inches of this amount for agricultural purposes, dating the initiation of this right on April 1, 1905. The appeal is from the decree.

Contention is made that finding 49 is indefinite and uncertain by reason of the use of the word "about," with reference to the time in the month of June of each year during which appellant's use may continue, and hence is defective. It is also said that the finding is defective in that it does not designate what two weeks in the month of June the use may be had. There was no motion for a new trial. The record contains no bill of exceptions showing any objection to the findings, or request to have them amended in any particular. It consists of the judgment roll alone. Section 6766, Revised Codes, declares that in no case shall a judgment be reversed for want of findings unless they shall have been requested as therein provided; and that when a case has been tried by the court, the judgment shall not be reversed on appeal for defects in the findings, or any of them, unless exception be made in the trial court because of such defect and the exception reserved in a bill. Section 6767 points out the mode by which the exception must be brought into the...