Howell v. Johnson
| Decision Date | 20 August 1898 |
| Citation | 89 F. 556 |
| Parties | HOWELL v. JOHNSON et al. |
| Court | U.S. District Court — District of Montana |
J. M Clements, for complainant.
E. N Harwood and A. J. Campbell, for defendants.
The plaintiff is a citizen of the state of Wyoming. The defendants are all citizens of the state of Montana. In his bill of complaint, plaintiff sets forth that he is the owner of certain lands in the state of Wyoming, and that, for the purposes of irrigating the same, he appropriated certain waters of a creek called 'Sage Creek.' This creek has its sources in Montana, and flows for some distance within its boundaries before it enters the state of Wyoming. Plaintiff's ditch and point of diversion of said waters are both within said last-named state. Defendants settled along the line of said creek, in Montana, subsequent to the appropriation of plaintiff, and in said state have diverted it is alleged, the waters of said creek, and prevented the same from flowing down to plaintiff's ditch and land. Plaintiff has sued defendants in this court, and asks to have them enjoined from so diverting said waters. Defendants have filed a demurrer to this bill.
The points presented in this demurrer are that plaintiff, having a water right acquired under and by virtue of the laws of Wyoming, cannot come into this court to enforce the same. It is also claimed that the rights pertaining to this water are under the control of the legislative power of Montana.
Considering the first point, it is urged that the right of plaintiff being acquired under and by virtue of the laws of the state of Wyoming, can be enforced only as to citizens of Wyoming, and not against citizens of Montana, who have diverted water only in Montana. Is the right claimed by plaintiff one which accrues only by virtue of the laws of Wyoming? Plaintiff alleges that he made his appropriation of the waters of said creek in accordance with the laws of Wyoming and of Montana. Allowing that there could be no appropriation of the waters of said creek made in Wyoming under or by virtue of the laws of Montana, still the allegation that the appropriation was made under the laws of Wyoming remains. According to the bill, plaintiff's.appropriation was made on the 1st day of August, 1890. At that date sections 2339 and 2340 of the Revised Statutes were in force. They provided:
In the case of Basey v. Gallagher, 20 Wall. 670, the supreme court said in regard to this act: 'The act of congress of 1866 recognized the right to water by prior appropriation for agricultural and manufacturing purposes as well as mining;' and also decided that if the right to appropriate water for any of the purposes named was recognized by either local customs, or by the legislation of any state or territory, or by the decisions of the court, it would be sufficient. The allegation in the bill that the water was appropriated under the laws of the state of Wyoming would meet the requirements of the said act of congress. Up to the date of the passage of said act of 1866, the right of the prior appropriator to use water, for any of the purposes above named, had, in the arid and mining regions of the West, been recognized as against any other person claiming the same, but not as against the government. This act, coupled with the act of July 9, 1870, embodied in said section 2340, recognized the right of the prior appropriator of water upon the public domain, even as against the United States and its grantees, if said appropriation was authorized by the statute of the state where the appropriation was made. Black's Pom. Water Rights, Sec. 25; Osgood v. Mining Co., 56 Cal. 571. The rights of plaintiff do not, therefore, rest upon the laws of Wyoming, but upon the laws of congress.
The legislative enactment of Wyoming was only a condition which brought the law of congress into force. The...
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