Hansen v. Larsen

• Decision Date: 28 December 1911
• Parties: HANSEN et al. v. LARSEN et al.
• Court: Montana Supreme Court

120 P. 229

44 Mont. 350

HANSEN et al. v. LARSEN et al.

Supreme Court of Montana

December 28, 1911

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

Action by Anna C. Hansen and another against Johannes Larsen and others to determine the relative rights of the parties to the use of the waters of a stream. From a judgment establishing the rights of the defendants Kohrs & Bielenberg, defendant the Conley & McTeague Company appeals. Affirmed.

Thomas F. Shea and Galen & Mettler, for appellant.

Rodgers & Rodgers and Moncure Cockrell, for respondents.

HOLLOWAY J.

This suit was brought to have determined the relative rights of the parties to the use of the waters of Peterson creek in Powell county. The trial court made findings of fact and conclusions of law and rendered and entered a decree. From that decree, in so far as it establishes the rights of the defendants Kohrs & Bielenberg, the defendant Conley & McTeague Company, a corporation, appeals.

The record presents only the judgment roll, and the appeal challenges but one finding of fact (No. 11), one conclusion of law (No. 27), and the decree in so far as it follows conclusion No. 27. By finding No. 11 the trial court found that Kohrs & Bielenberg, and their grantors and predecessors in interest, appropriated and used of the waters of Peterson creek 250 inches of date April 1, 1866, and 150 inches of date April 1, 1867; that these waters were appropriated for placer mining purposes and used exclusively for mining, until May 1, 1904; but that such use was confined to the spring and summer of every year and not later than July 20th; that the waters so appropriated and used were conveyed to and used at a point beyond the watershed of Peterson creek, so that the water not actually consumed did not return to Peterson creek but flowed into Deer Lodge river and away from the Peterson creek basin; that about May 1, 1904, Kohrs & Bielenberg changed the use of the water from a mining to an agricultural use, and changed the place of use from their mining to their agricultural lands. In its conclusion of law No. 27 the court determined that Kohrs & Bielenberg are entitled to use the waters, thus appropriated, up to July 20th every year, and during such periods are entitled to convey the same way from the watershed of Peterson creek. This briefly epitomizes the finding and conclusion attacked upon this appeal. The decree adopted and followed conclusion No. 27. Appellant contends that conclusion No. 27 and the decree are not supported by finding No. 11, and that finding No. 11 is not warranted by the pleadings.

The evidence is not before us, and we will assume that it fully supports every finding made or necessarily implied.

1. The argument of counsel for appellant is that, to justify conclusion No. 27 and the decree, it was necessary for the trial court to find: (a) That there was a change in the use of the Kohrs & Bielenberg appropriations from mining to agricultural; (b) that such change did not affect adversely the rights of other appropriators; and (c) that the agricultural use was for lands situated without the Peterson creek basin. The first of these facts was found by the court expressly. There is not anything said as to either of the other facts, but it is the rule in this jurisdiction that, if the existence of a particular fact is necessary to support the decree, it will be deemed to have been found by implication (if the issues warrant such finding); whereas in this instance the record does not disclose that there was any request for an express finding...