Head v. Hale

Decision Date08 February 1909
PartiesHEAD et al. v. HALE et al.
CourtMontana Supreme Court

38 Mont. 302

HEAD et al.
v.
HALE et al.

Supreme Court of Montana.

Feb. 8, 1909.


Appeal from District Court, Lewis and Clark County; J. M. Clements, Judge.

Action by Charles H. Head and others against Robert S. Hale and others. From a decree granting insufficient relief and an order denying a new trial, plaintiffs appeal. Reversed and remanded.


Walsh & Newman and Gunn & Rasch, for appellants.

McConnell & McConnell, for respondents.


BRANTLY, C. J.

This action grew out of a controversy between the plaintiffs and defendants over the use of the water flowing in Seven-Mile creek and its tributaries, in Lewis and Clark county, and was brought to have determined the priorities of their several rights and for a perpetual injunction to restrain the defendants from diverting it or any of it to the detriment of plaintiffs' rights. The trial court heard the evidence upon the issues made by the parties, and entered a decree fixing the dates and amounts of their respective appropriations and enjoining them from interfering with the rights of the others. The plaintiffs, being dissatisfied with the decree in so far as it declared defendant Hines and the Northern Pacific Railway Company entitled to a priority over them, moved for a new trial upon the questions at issue between themselves and these defendants. This motion was denied. The plaintiffs thereupon appealed from the decree and the order denying their motion.

The contention made in this court is that the evidence submitted at the trial was not sufficient to sustain the findings as to the rights referred to. The rights of the other defendants are not brought in question. Plaintiffs assert the right to the use of 225 inches under an appropriation by their predecessors in interest out of the main stream in the month of July, 1864, and continuous use of this quantity from that time until the bringing of the action, except when their rights had been interfered with by the defendants. It is alleged that all of the defendantsother than the Northern Pacific Railway Company during the summer of 1904 had wrongfully diverted the water from the stream and its tributaries to lands owned by them, thus depriving the plaintiffs of the use of it, and that they threatened to continue thus to invade the plaintiffs' rights, to their irreparable damage. As against the Northern Pacific Railway Company it is alleged that it maintains water tanks at various points along the line of its road in Lewis and Clark county where it is in proximity to the stream for...

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