Gassert v. Noyes

• Citation: 44 P. 959,18 Mont. 216
• Parties: GASSERT v. NOYES et al.
• Decision Date: 04 May 1896
• Court: United States State Supreme Court of Montana

44 P. 959

18 Mont. 216

GASSERT v. NOYES et al.

Supreme Court of Montana

May 4, 1896

Appeal from district court, Silver Bow county; J. J. McHatton Judge.

Action by Harry Gassert against John Noyes and others. From a judgment for defendants, and an order denying a new trial plaintiff appeals. Reversed.

Shropshire & Burleigh and Robinson & Wapleton, for appeallant. Forbis & Forbis, for respondents.

PEMBERTON. C.J. (after stating the facts).

The action of the court in excluding the evidence of the contents of a lost bill of sale or deed from Chris. Nissler, as administrator on Nurenberg, to plaintiff, of the ditch called the "Gassert Ditch," and claimed by plaintiff, is assigned as error. It did not appear that Nissler was administrator of Nurenberg, or, if he was, that he had nay authority to execute the lost paper. We think there was no error in the action of the court.

The jury found that the grantors of the defendants abandoned their ditch and water right in 1873, by failing to use the same during the years 1873, 1874 and 1875. The court set aside this finding, and made a finding of its own, that their was no such abandonment. This action of the court is assigned as error. There was no evidence of nonuser of the water for any greater length of time than the three years named. Mere lapse of time is not alone sufficient to establish abandonment. McCauley v. McKeig, 8 Mont. 389, 21 P 22; Partridge v. McKinney, 10 Cal. 181; Moon v Rollins, 36 Cal. 333; Judson v. Malloy, 40 Cal 300; Black's Pom. Water Rights, p. 184. Abandonment is a mixed question of intention and act. The grantors of defendants testify that they had no intention of abandoning their water right during the three years they did not use it. During that time one of the grantors purchased the interest of one of his co-owners in the ditch and water right. It was competent for these witnesses to testify as to their intention in this regard. 11 Am. & Eng. Enc. Law, p. 377, and authorities cited. We think the court was justified in setting aside the finding of the jury, that the grantors of defendants had abandoned their ditch and water right in 1873, and making its own finding, that there was no such abandonment.

The jury found that the plaintiff had a right prior to that of the defendants to the use of 250 inches of the water in controversy. The court set aside this finding, and found that the right of the defendants to the sue of 300 inches of the water was prior to that of plaintiff. The court found that plaintiff's appropriation was made in 1875, and that the grantors of defendants made their appropriation in 1868. From 1868 to 1878 the defendants and their grantors had used the water appropriated by them in mining on placer ground in Oro Fino Gulch. After the water had been thus used, it was permitted by the defendants and their grantors to return by way of Oro Fino Gulch to Brown's Gulch, at a point above the plaintiff's ditch, so that plaintiff could use it through his ditch in irrigating his lands. In 1878 the defendants extended their ditch from the point on Oro Fino Gulch, where their water had been used for 10 years, to a point near Rocker, on the other side of the ridge or hill between Silver Bow Creek and Brown's Gulch. It is conceded that by extending the ditch through the ridge or hill between Brown's Gulch and Silver Bow Creek, to the point near Rocker, and thereby conveying the water to that point, it became impossible for it to be returned to Brown's Gulch, but that it escaped into Silver Bow Creek after being used near Rocker. Thus, it appears that by extending their ditch and changing the place of the use of the water from the point where it was used when plaintiff made his appropriation, and long prior and subsequent thereto, the defendants absolutely deprived the plaintiff of the right to use the water in controversy at all. The question then is, had the defendants the right to so change the place of the use of the water in controversy as to deprive the plaintiff entirely of the use thereof? Upon this point the court instructed the jury as follows: "The owner of the water right has the right to change the point of diversion, or the place or manner or use of the water, as he or they may see fit and proper, provided the rights of other appropriators are not interfered with by such change; and in this case you are instructed that if the defendants were the owners of the waters of the tributaries of Brown's Gulch, and were using the same upon their placer grounds, that they might change the place of use, so that the water, instead of flowing into Brown's Gulch, would flow into Silver Bow Creek." The giving of this instruction is assigned as error.

In Water Co. v. Powell, 34 Cal. 109, a case involving the question under consideration, Mr. Justice Sawyer says "But suppose the plaintiff appropriated the waters, and constructed its ditch and dam amply sufficient, under the condition of the stream and the country as it then existed, to make it available, and acquired a right to appropriate and use said water in the manner adopted, and to the extent of the appropriation, this would not prevent other parties from acquiring rights in the surplus water, or in the bed and banks of the stream, or...