Kimpton v. Jubilee Placer Min. Co.

• Decision Date: 15 July 1895
• Citation: Kimpton v. Jubilee Placer Min. Co., 16 Mont. 379, 41 P. 137 (Mont. 1895)
• Parties: KIMPTON v. JUBILEE PLACER MIN CO. et al. [1]
• Court: Montana Supreme Court

41 P. 137

16 Mont. 379

KIMPTON v. JUBILEE PLACER MIN CO. et al. ^[1]

Supreme Court of Montana

July 15, 1895

Appeal from district court, Jefferson county; Frank Showers, Judge.

Action by Washington I. Kempton against the Jubilee Placer Mining Company and others to determine his right to 200 inches of water from a stream. From a judgment for defendants plaintiff appeals. Reversed.

Toole & Wallace, Cowan & Parker, Walsh & Newman, and Shober & Rasch for appellant.

Henry C. Smith and Thos. J. Galbraith, for respondents.

DE WITT, J. (after stating the facts).

With the elaborate special findings contained in this case, the setting aside of the general verdict by the court is not important. Special findings control the judgment, even if the general verdict be contrary thereto. Code Civ. Proc. 1887, § 275. As noted in the statement, the parties claim the use of the waters from a common source of title. The plaintiff's title is long prior to that of the defendants. He purchased the ranch many years before the defendants purport to have purchased certain other premises, with, as they claim, the same waters appurteant thereto. The jury found that, when the plaintiff purchased the ranch, there were three ditches tapping the waters of Crow creek, and conveying the same to and upon the ranch of plaintiff during the irrigating season that the carrying capacity of said ditches at that time was respectively, 800, 200, and 1,000 inches; that the grantors of plaintiff owned sufficient of the waters of Crow creek to supply said ditches. This last finding, however, must be interpreted to the effect that said grantors owned the use of sufficient water to supply the ditches. It is also found that these ditches and waters were those mentioned in the deeds from plaintiff's grantors. These deeds, it is to be observed, were prior to the conveyances to defendant, the Jubilee Placer Mining Company. These deeds from plaintiff's grantors to him of said ranch and water right were duly acknowledged and recorded at the time the defendants purchased of plaintiff's grantors the right they claim in the water. At the time when the defendants purchased whatever right they had in and to the use of the waters of Crow creek, the plaintiff had one ditch, which he used during the irrigating season in carrying the waters of Crow creek upon his ranch. The carrying capacity of that ditch was 200 inches. The amount of water requisite and necessary to properly irrigate plaintiff's ranch was 160 inches. The plaintiff purchased this ranch, ditches, and water right on the strength of the representations of his grantors that he was entitled to the use of said waters to the amount of 200 inches. The plaintiff paid for said ranch ditches, and water right the sum of $3,190. The plaintiff would be seriously and materially damaged if deprived of the use of said waters. When defendants purchased from plaintiff's grantors, the said ditches were easily observed. The jury also found that the defendants, or their grantors, had not used this water in question, nor has this water been used by them for the purpose of irrigating, or for their ordinary use, or for any other useful or beneficial purpose, for a period of five consecutive years before the commencement of this action. Such were the findings which the court adopted, and upon which it rendered judgment for the defendants for their costs. How the court arrived at such a conclusion is to us inscrutable. The facts were found in favor of the plaintiff fully and completely. Prior to the inception of the defendants' claim upon the waters, plaintiff had bought his land from the defendants' grantor. He bought it with the water appurtenant...