Gans & Klein Inv. Co. v. Sanford

• Decision Date: 03 March 1932
• Docket Number: 6880.
• Citation: 8 P.2d 808,91 Mont. 512
• Parties: GANS & KLEIN INV. CO v. SANFORD et al.
• Court: Montana Supreme Court

8 P.2d 808

91 Mont. 512

GANS & KLEIN INV. CO v. SANFORD et al.

No. 6880.

Supreme Court of Montana

March 3, 1932

Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.

Proceeding by P. H. Chevallier, as successor in interest to the rights of the Gans & Klein Investment Company, against William Sanford, Mary P. McDonald, and others, in which defendant McDonald filed a cross-complaint. From an order instructing a water commissioner as to distribution of water between plaintiff and cross-complainant, plaintiff appeals.

Reversed.

Stewart & Brown, of Helena, for appellant.

F. W Mettler, of Helena, for respondent McDonald.

Henry C. Smith, of Helena, for respondent Heany and others.

CALLAWAY C.J.

This is an appeal from an order made after final judgment, from an order giving directions to a water commissioner.

The situation is unusual, but one likely to arise in one aspect or another in periods of low water, especially when there have been two or more decrees affecting the waters of a stream. Whenever the rights of persons to use the waters of a stream have been determined by a decree or decrees of a court of competent jurisdiction, the judge of the court, upon proper application made, is empowered to appoint one or more water commissioners who shall have the authority to admeasure and distribute to the parties bound by the decree or decrees the waters to which they are entitled. Section 7136, Rev Codes 1921, as amended by section 1, c. 125, Session Laws 1925.

Any person owning or using any of the waters of the stream, who is dissatisfied with the method of distribution employed by the water commissioner or commissioners, and who claims to be entitled to more water than he is receiving, or is entitled to a right prior to that allowed him by the commissioner or commissioners, may file with the judge his written complaint duly verified, setting forth the facts of such claim. Thereupon the judge shall fix a time for the hearing of the petition and shall direct that such notice be given to the parties interested in the hearing as he may deem necessary. At the time fixed for the hearing, the judge must hear and examine the complainant and such other parties as may appear to support or resist the claim made, and also examine the water commissioner or commissioners and witnesses as to the charges contained in the complaint. Upon the determination of the hearing, the judge shall make such findings and order as he may deem just and proper in the premises; if the water commissioner or commissioners have not properly distributed the water according to the provisions of the decree, then the judge shall give the proper instructions therefor. Section 7150, Rev. Codes 1921, as amended by section 5, c. 125, Session Laws 1925.

This proceeding affects the right to the use of the waters of Little Prickly Pear creek. Three decrees are under consideration. The first, wherein William W. Martin, Henry Klein, Herman Gans, and Louis Gans were plaintiffs, and Frank M. Proctor, George W. McCormick, and others were defendants, was rendered in 1890, Hon. William H. Hunt, judge presiding, and will be referred to as the Hunt decree. In this decree it was adjudged that the defendants Proctor and McCormick had two rights, one of 66 inches as of the spring of 1867, prior to that of plaintiffs, and a second right of 66 inches as of the spring of 1881. The second right the court held "is subordinate to the right of the plaintiffs to the use of 500 inches of the waters of said Little Prickly Pear Creek, as appropriated through their Trinity Ditch, ***" which the court held subsequent to Proctor and McCormick's first right.

The second decree was the result of a suit brought by the Gans & Klein Investment Company, successor in interest of the plaintiffs in the Hunt decree, against William and Ann Sanford and many others, including Proctor, who was the successor in interest of McCormick's rights, with the evident purpose of determining the rights of all water users upon Little Prickly Pear creek and its tributaries. After trial before Hon. Henry C. Smith, judge presiding, a decree was entered August 2, 1905, which will be referred to as the Smith decree. Finding of fact No. 5 of this decree recites the entry of the Hunt decree wherein Proctor and McCormick were given the first right of 66 inches as an older and prior right to the claim of plaintiffs, Gans & Klein Investment Company, "but that plaintiffs' right is prior to the balance of said Proctor and McCormick right." Then follow findings establishing amounts and dates of rights to the use of the waters of Little Prickly Pear creek and its tributaries prior to the rights of Proctor and the Gans & Klein Investment Company.

In separate findings the court without reservation found the Proctor right to be 222 inches as of date May 30, 1867; the Gans & Klein Investment Company's right to be 265 inches as of date September 15, 1867; the Ann Negus and Moses F. Root right to be 300 inches as of date March 1, 1872, and the James A. Best and Frank J. Wohlfrom right to be 145 inches as of date March 1, 1872. Other findings relate to many subsequent rights of various appropriators.

Appropriate conclusions of law followed, among them four severally confirming the rights of Proctor, the Gans & Klein Investment Company, Negus and Root, Best and Wohlfrom, as above stated. Following many other conclusions came 34, reading as follows: "That as between Frank M. Proctor and the Gans & Klein Investment Company, Proctor is first entitled to the use of 66 inches of water and then the Gans & Klein Investment Company as against Proctor is entitled to the use of 500 inches of its water before the said Proctor is entitled to use the balance of his 222 inches heretofore mentioned." Others followed. Thereupon the court entered its decree.

Later, in an action entitled Gans & Klein Investment Company v. Lidolph et al., Hon. J. M. Clements presiding, additions were made to the Smith decree. This last decree was rendered March 21, 1908, and is called the consolidated decree. Therein the court reiterated all findings and conclusions of law of the Smith decree which are pertinent here.

P. H. Chevallier is the successor in interest of the rights of Gans & Klein Investment Company; Mary P. McDonald is the successor in interest of the rights of Proctor; Mark A. Heany and Della A. Heany are the successors in interest of the rights of Root and Negus; and James A. Best is the successor in interest of the rights of Best and Wohlfrom.

This proceeding was begun by Chevallier who complained in writing, pursuant to the provisions of section 7136 as amended, supra, annexing to his complaint as Exhibit A a copy of the Hunt decree, and as Exhibit B a copy of the Smith decree. There is annexed also a copy of the consolidated decree. He alleged that, "notwithstanding the fact that said decrees are in full force and virtue and have never been modified, set aside or changed as to these particular rights," the water commissioner persists and continues to interpret the decree and distribute the waters so as to give to the successors of Proctor and McCormick 66 inches of water, then to the complainant 265 inches of water, then to the successors of Proctor and McCormick the remainder of their 222 inches; he alleges that Mrs. McDonald should be given 66 inches of water as of the early part of 1867, but before she "shall have the balance of the 222 inches" Chevallier be given 500 inches of the waters of the stream"; that is to say, that when the waters of said stream are so low as to shut off rights prior to 1872, the successors in interest of Proctor and McCormick's rights shall have 66 inches but before they get any more the successors in interest of the Gans & Klein Investment Company's rights, to wit, this complainant, shall have 500 inches of said stream adjudicated."

The judge issued an order to show cause directed to the water users. Thereafter Mary P. McDonald filed her separate answer and cross-complaint, in which she contended that she should have a prior right to the use of 222 inches of the waters of the creek before Chevallier is given any. Chevallier replied. On the same day the reply was filed Chevallier filed a motion for judgment on the pleadings. Four days later McDonald filed a like motion.

In the meantime Della A. Heany, Mark A. Heany, and James A. Best filed an answer to the complaint of Chevallier. On the 6th of November a hearing was had. The motions for judgment on the pleadings were submitted without argument, and the judge, upon a review of the pleadings, held that the references to the Hunt decree therein are not any part of the decision in the Smith (or the consolidated) decree, and that the waters of Little Prickly Pear creek should be distributed without regard to any references made in the judgment roll to the Hunt decree. The judge overruled the motion of Chevallier and sustained that of McDonald, instructing the water commissioner that, as between Chevallier and McDonald, the water should be distributed as follows: First, 222 inches representing the Proctor interests as of date May 30, 1867, to McDonald; second, 265 inches representing the Gans & Klein interests as of date September 15, 1867, to Chevallier; the remainder of the waters, if any, to be distributed and apportioned to the subsequent users in accordance with the dates of their appropriations as fixed and determined in the Smith and consolidated decrees. To all intents and purposes the term "Judge" and the term "Court" will be deemed synonymous in this proceeding.

In the bill of exceptions there is included a stipulation entitled "Gans & Klein Investment Co., Plaintiff, vs. Wm. and Ann Sanford et al., Defendants, No. 5627," in which it is...