Lokowich v. City of Helena

• Citation: 129 P. 1063,46 Mont. 575
• Parties: LOKOWICH ET AL. v. CITY OF HELENA.
• Decision Date: 28 January 1913
• Court: Montana Supreme Court

129 P. 1063

46 Mont. 575

LOKOWICH ET AL. v. CITY OF HELENA.

Supreme Court of Montana

January 28, 1913

Appeal from District Court, Broadwater County; W. R. C. Stewart Judge.

Injunction by Frank Lokowich and others against the City of Helena. Judgment for defendant, and plaintiffs appeal. Affirmed.

Hartman & Hartman, of Bozeman, and J. A. Walsh, of Helena, for appellants.

H. S Hepner, Edw. Horsky, C. W. Wiley, and Walsh & Nolan, all of Helena, for respondent.

SANNER J.

Appeal from a judgment of dismissal and from an order overruling a motion for a new trial.

The appellants are owners in severalty of certain agricultural lands situate in the valley of Beaver creek, Broadwater county, Mont., and of certain rights in and to the waters of said creek; and they have brought this action to have the respondent city of Helena permanently enjoined from changing the place of diversion of said waters under its prior rights and from conveying such waters continuously and permanently out of the watershed of the stream to the city for municipal purposes.

They allege that by a decree of the district court of Broadwater county, in what is herein referred to as the Spokane Ranch Case, the respective rights of all the parties to this action in and to the waters of Beaver creek were determined as to volume and date, and that there was adjudged to respondent the first four rights upon the creek; that in said suit there was no issue presented in the pleadings with reference to taking any of said waters out of or beyond the watershed of Beaver creek, no issue as to the time that respondent or its predecessors in interest used any of said waters, and no determination as to what particular rights respondent had therein as to time or manner of use; that the respondent's several rights were in fact wont to be used only at certain intervals each year during the irrigation or mining season, leaving the waters to flow in said creek at other seasons for the use and benefit of appellants and other appropriators; that the city and its predecessors were wont to so divert its waters that seepage occurred, which supplied the appellants and other appropriators; that the city threatens to change its point of diversion, and convey said waters in pipes to the city of Helena out of and beyond the watershed of said stream, to be there used continuously for municipal purposes.

1. The flow in Beaver creek, except at flood times, is approximately 165 inches or 4.125 cubic feet per second. Of the four rights therein belonging to respondent the first three are agricultural rights, and aggregate 328 inches or 8.17 cubic feet per second, and the fourth is a placer mining right for 1,000 inches, or 25 cubic feet per second. The points of diversion of all these agricultural rights are below the French Bar ditch, by which the waters under the placer right are diverted, and the city proposes to establish a new point of diversion for its placer mining right above the French Bar ditch, and through it take such water as it may to Helena for municipal purposes. If for this branch of the discussion it be assumed that the respondent is authorized to take the waters held in virtue of its placer right out of the watershed of Beaver creek, it does not seem of much importance, in view of the normal flow of the creek, whether they are taken through the French Bar ditch or from a point above, as proposed.

While of course, one may not change the point of diversion any more than the place of use or the character of use to the prejudice of other appropriators (Rev. Codes, § 4842), it does not follow that any such change is to be taken in limine as prejudicial. On the contrary, the burden is on the party claiming to be prejudiced by such change to allege and prove the facts. Hansen v. Larsen, 44 Mont. 350, 120 P. 229. Now, as to whether the appellants would be prejudiced by the proposed change in the point of diversion, there was an issue in the pleadings; but, while there are many offers to prove prejudice to the appellants from the proposed change in the manner and place of use, the record is barren of any proof or offer to show prejudice from the proposed change in the point of diversion.

2. Counsel for appellants concede that the disposition of this case depends upon the answers to the following questions: (a) Can the respondent take these waters out of the watershed of the stream and use them continuously, to the manifest and irreparable damage of the appellants? (b) Was this question tried, determined, and disposed of in the case of Spokane Ranch & Water Co. v. Beatty et al., 37 Mont. 342, 96 P 727, 97 P. 838? It is claimed that the right of respondent to make a continuous diversion was not settled in the Spokane Ranch Case, because not involved, and appellants assign as error the refusal of the trial...