Head v. Hale

• Citation: 100 P. 222,38 Mont. 302
• Parties: HEAD et al. v. HALE et al.
• Decision Date: 08 February 1909
• Court: Montana Supreme Court

100 P. 222

38 Mont. 302

HEAD et al. v. HALE et al.

Supreme Court of Montana

February 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 defendants other 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 the purpose of supplying its locomotives with water and for general purposes in connection with the operation of its road, and that during the summer of 1904, by means of pumps ditches, canals, and other devices located at points above the heads of plaintiffs' ditches, it diverted from the stream large quantities of water, to the use of which the plaintiffs were entitled, and had continued this diversion down to the bringing of this action, to the irreparable damage of plaintiffs.

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Seven-Mile creek has its source in the mountains in the western part of Lewis and Clark county, and flows toward the east. The subjoined sketch will serve to illustrate the contentions of the parties. The plaintiffs' lands are situate east of Austin station and below the mouth of Skelly Gulch, and, so far as we can learn from the record, the heads of their ditches are below this tributary. The railroad of the defendant company, running westward, proceeds up the stream to Austin station, where it turns to the northwest. Defendant Hines asserts his right under three separate appropriations-one, of all the water flowing in the tributary falling into the main stream from the south, and designated as "Mountain Stream," alleged to have been made in the spring of 1865; a second from Greenhorn Gulch, of the same date and amounting to 50 inches; and the third from Austin Gulch, amounting to 50 inches, made in the spring of 1867. These appropriations it is claimed were made by one Beheim, who was then in possession of the lands now occupied by Hines, and under whom Hines claims as successor in interest. The defendant Northern Pacific Railway Company is the successor in interest of the Northern Pacific Railroad Company, the builder and original owner of the Northern Pacific railroad, extending from Lake Superior to Puget Sound. This defendant became its successor on September 1 1896. When the line of road was built through Lewis and Clark county in 1883, a station was established at Austin. In order to obtain a supply of water for its locomotives and for general purposes, it built a tank and installed a pumping plant at this point. It obtained water from a well sunk on its own land. This well was supplied by drainage from Seven-Mile creek. The amount diverted from this source was and is 3.43 inches, and was and had been used without reference to the amount flowing in the stream. On July 18 1885, as a precaution against any failure of this supply and to meet its increasing necessities, this defendant purchased from two of the predecessors of the defendant Hines-J. C. Sloan and T. H. Coulter-who had possession at that time of the lands and water rights which Hines now owns, the use of 10 inches of water flowing in the mountain stream, together with the right...