Irion v. Hyde

• Decision Date: 15 July 1940
• Docket Number: 8013.
• Citation: 105 P.2d 666,110 Mont. 570
• Parties: IRION et al. v. HYDE et al.
• Court: Montana Supreme Court

105 P.2d 666

110 Mont. 570

IRION et al. v. HYDE et al.

No. 8013.

Supreme Court of Montana

July 15, 1940

Rehearing Denied Sept. 27, 1940.

Appeal from Sixteenth Court, Powder River County; S.D. McKinnon Judge.

Suit by Ed Irion and Jennie M. Irion against James W. Hyde and Georgie C. Hyde, to enjoin defendants from maintaining dams alleged to interfere with plaintiffs' prior water rights wherein defendants filed a cross-complaint. From an adverse judgment, the plaintiffs appeal.

Reversed and remanded, with instructions.

ANGSTMAN and MORRIS, JJ., dissenting.

Jerome Parks and W. B. Leavitt, both of Miles City, for appellants.

L. J Onstad, of Broadus, for respondents.

JOHNSON Chief Justice.

This is an appeal from an amended judgment rendered pursuant to new findings of fact and conclusions of law made after the cause had been here on a prior appeal and had been remanded to the district court for further proceedings.

In 1937 plaintiffs sought to enjoin defendants from maintaining dams alleged to interfere with plaintiffs' prior water rights on Sheep Creek. In their answer and cross-complaint defendants claimed a water right superior to plaintiffs' to the extent of 1,500 miner's inches on the creek and two of its tributaries, by adverse user and by plaintiffs' abandonment, and sought an adjudication of their right. Plaintiffs' reply denied the allegations of abandonment and adverse user and alleged that defendants' storage and use of the water had been initiated with plaintiffs' qualified consent, and that defendants had never claimed adversely to plaintiffs until 1934. Upon the original trial the district court rendered findings of fact, conclusions of law and decree sustaining defendants' claim to water rights superior to plaintiffs' by adverse user, and denying plaintiffs requested injunction against the maintenance of defendants' dams. On the first appeal ( Irion v. Hyde, 107 Mont. 84, 81 P.2d 353) the plaintiffs' contentions were sustained in this court and the judgment awarding defendants a superior right was reversed; but as the measure of plaintiffs' prior right was not established in any way at the first trial, and as it appeared to the court that there might be some appropriate remedy for the defendants' interference with plaintiffs' right short of the destruction of defendants' dams, the cause was remanded for further proceedings. To save repetition the judgment roll incorporated in the transcript in the former appeal, Cause No. 7796, was not repeated in the transcript on this appeal, but was incorporated therein on appellants' motion.

It was shown on the retrial in 1938 that Sheep Creek is a natural dry watercourse without water except during the spring run-off and after heavy rains. Plaintiffs' appropriation is by means of a diversion dam which by raising the level in the creek bed only three or four feet causes all of the water to flood between 100 and 130 acres of plaintiffs' land through a natural swale or old channel in which plaintiffs have constructed a ditch; the uncontroverted evidence shows that plaintiffs' diversion ditch and swale carries all the water which comes down the creek except under very unusual conditions and that little gets away even in great floods; that "it did top over once" more than ten years prior to the hearing; that all of the water is required for the flood irrigation of plaintiffs' lands; that there has been surplus water at plaintiffs' point of diversion only at times of extreme floods, or when the frost was still in the ground; that only once in ten or twenty years had there been any excess water in summer floods, and not during the past ten years, that the spring run-off ordinarily takes from two to four days, but that the only flow since 1927 was the early spring run-off of 1938 when there was a small amount for two days but not sufficient for all of plaintiffs' needs, "a little flow, but not much;" that in 1935 the dam was about full and the water ready to run out on plaintiffs' lands, but that defendants were holding water back at their dam and not enough escaped to put the water on plaintiffs' land.

It was shown that the defendants formerly had two storage dams on tributaries of the creek above their own and the plaintiffs' diversion on the creek itself, but have abandoned them and their only diversion is by storage and diversion dam about three and three-quarters miles away from plaintiffs' on a direct line, but some nine miles above following the windings of the creek; that this dam is higher than the banks of the creek at that point and backs the water up about 200 yards; that it stores or diverts all the water of the creek except in very extreme floods, and has taken all water that has come down in the past ten years and longer; except that on one occasion twelve years before the retrial and again in 1938 there had been some surplus; that there had been only a few such occasions since 1915. The bottom of the diversion ditch is about four feet below the crest of the dam and water flows through it to defendants' land when only three or three and one-half feet deep in the reservoir, and the capacity of the reservoir is 20.1 acre feet. There is no gate or spillway in the dam and no headgate in the ditch. The defendants claim to need and use all the water in the creek to irrigate something less than thirty acres. Defendants testified that the creek did not run at all except at time of spring flow or "gully washer," and only when practically bank full; but no witness testified to ever having seen it running bank full. One of the defendants testified that if there was water for one there was water for both, but admitted that only three times since 1914 had there been any excess water at their dam, and that except for those times they had used all of it. The evidence throughout was unsatisfactory; there was considerable ambiguity in the testimony and defendants may have meant to say that there was also occasionally some excess of water at the time of the spring run-offs in addition to the three times mentioned.

The watershed of defendants' dam is 7.2 square miles and that of plaintiffs' dam below defendants' is 8.36 square miles, but ordinarily there is a greater head of water at defendants' dam than at plaintiffs', the testimony showing that the land is flatter on plaintiffs' watershed than on defendants' and also that there are some 275 pot holes in the creek bed between plaintiffs' and defendants' dams. No competent evidence appears in the record as to the capacity of these holes, absolutely the only testimony offered being that of an electrical engineer who stated that he had taken up hydro-electric engineering and had had experience in surveying land, measuring reservoirs and computing the volume and flow of water. He testified as a witness for defendants that he had walked down the stream to a point about a mile and a half below defendants' dam, in that distance had counted 119 pot holes, and had measured four which he picked out "at random" as "appearing about of the same average." The capacity of the largest in cubic feet was 5,140 and the smallest 2,127, of all four 14,914, and of their average 3,728. He did not look at the other 156 in the other seven and one-half miles at all but assumed that the four were average, not only of the 119, but of the entire 275, and on that assumption computed their entire capacity at 1,125,200 (he apparently meant 1,025,200) cubic feet, which he said was 149,300 cubic feet (about seventeen per cent) more than the capacity of defendants' reservoir. Obviously no one could merely look at 119 holes in the ground and pick out four, the largest of which was two and one-half times the size of the smallest, and credibly testify that their average capacity was even approximately that of the 119; and the assumption is palpably fantastic as a basis for computing the capacity of 275 holes, 156 of which he had never even seen. Such testimony obviously constituted no evidence whatever of the contents of the pot holes.

The same is true of his evidence with reference to the maximum flow of the creek. He had never seen water flowing there, but at a point about one and a half miles below defendants' dam, the conditions of which he did not describe, and which he selected, not as being typical of the creek bed in grade, cross-section and other characteristics, but merely as being "a section where I would be able to compute and measure it," he had found what he called "trash marks" indicating the high water mark of the spring of 1938, and said that from the measurements he made there he computed "the capacity or volume of water in Sheep Creek." His entire testimony on this point was as follows: "A. The capacity of the creek is undoubtedly greater than I measured. The measurement I took was from the evidence there, which was a trash line, indicating beyond doubt that the water had been that high recently enough so that the trash-line was left. The cross section taken and the water level block between the cross sections taken, gave me the figure upon which a computation of the flow at the time that trash-level was left was made. That flow computed is 7180 miners inches."

Apparently he made some effort to determine the grade at that point although there was no testimony whatever indicating what he meant by "the water level block between the cross sections taken," or where or how far apart the cross sections were, or whether the point in question was typical or fairly representative of the channel conditions in general, or whether the high water mark represented crest of flow or merely a high storage point, and if the former, whether such maximum crest might have continued a week or a second, or whether such flow at that point might have...