Mccauley v. Mckeig

• Decision Date: 18 January 1889
• Parties: McCAULEY v. MCKEIG.
• Court: Montana Supreme Court

8 Mont. 389

McCAULEY

v.MCKEIG.

Supreme Court of the Territory of Montana.

Jan. 18, 1889.

Appeal from district court, Silver Bow country.

Action by Jefferson McCauley against David McKeing. Judgment for defendant, and plaintiff appeals.

Knowles & Forbes, for appellant.

W. W. Dixon, for respondent.

BACH, J.

This is an action setting forth in one complaint two causes of action for two separate nuisances. The first is for the diversion of water from the ditch and land of plaintiff. The second is for running down tailings, sand, and dirt into plaintiff's ditch, and upon his land. The prayer is for damages, and for an injunction to abate both nuisances. The defendant denied all the allegations of the Plaintiff's complaint, and set up title in himself to the water diverted, and also a right by prescription to run down tailings upon plaintiff's land. The cause was tried with a jury. The jury returned a general verdict in favor of the defendant, and made special findings covering the issues in the case. The following summary of the special findings will present all the facts in issue: The defendant appropriated the waters of Soap creek in controversy for the purposes of placer mining in 1869, and has never abandoned the same. The plaintiff did not appropriate or use said waters until 1872. The defendant has not used said waters since 1872 in any manner differing from his use of the same prior to that date. In 1886 (the year complained of) the defendant did not so use the water as to occasion any loss of water not incidental to his use of the same for placer mining purposes. During that time he did not so use the same as to cause it to carry down any more sand, gravel, sediment, or tailings than is usual from the use of water in placer mining. In 1886 plaintiff's ditch was filled up, and tailings, sand, and gravel were filled up, and tailings, sand , and gravel; were deposited on his land, which was partly caused by the mining operations of the defendant resulting from the ordinary use of water for placer mining. The plaintiff is the owner of the lands mentioned in the complaint, and in 1872 he appropriated said waters by defendant as aforesaid does not cause any injury to the lands or ditches of the plaintiff, or to the water used by him; and the plaintiff has acquired no right to said waters adverse to the right of defendant. After the return of the general verdict and special findings, counsel for defendant moved the court to approve and adopt the special findings, and to render judgment for defendant for costs. The court granted the motion, and judgment was ordered for defendant. A motion for a new trial was made and denied. The appeal is from the judgment, and from the order denying a new trial.

There are practically three demands made by plaintiff in his complaint: (1) He asks that the defendant be perpetually enjoined from diverting certain waters; (2) he asks that defendant be restrained from turning the tailings from his placer mines into the creek, and thereby causing them to run into plaintiff's ditch; (3) he asks for damages. The order denying the motion for a new trial may well be considered separately with each of these several demands.

As to the prayer that defendant be restrained from diverting the waters, there is evidence tending to show that the defendant was the first appropriator; that he has never abandoned his right, and that the plaintiff has established no right adverse to the defendant. The jury did find, it is true, that defendant did not use any of said waters duringthe years of 1878, 1879, 1880, 1882, and 1883. They did, however, find that he used said waters during the yar 1881; and the testimony shows that there was not water enough to work mines during certain of the years mentioned. We do not think that those facts establish an abandonment by the defendant. The judgment of the court below, denying...