McDonald v. Lannen
| Decision Date | 18 January 1897 |
| Citation | 47 P. 648,19 Mont. 78 |
| Parties | McDONALD v. LANNEN et al. |
| Court | Montana Supreme Court |
Appeal from district court, Granite county; Theo. Brantley, Judge.
Action by Angus A. McDonald against Edward Lannen and others to determine the priorities between water rights. There was a judgment for defendants, and plaintiff appeals. Modified.
This action was commenced on the 7th day of November, 1893, under section 1260, p. 997, div. 5, Comp. St. Mont., for the purpose of determining the respective priorities of the plaintiff and the defendants, who were claimants of the use of the waters of Willow creek, in the county of Granite state of Montana, and was tried by the court sitting without a jury. The plaintiff appeals from the decree, and claims that the court committed errors of law in admitting testimony, and that certain findings of fact are not supported by the evidence.
Durfee & Brown, for appellant.
Rodgers & Rodgers, for respondents.
BUCK J. (after stating the facts).
Appellant (plaintiff in the lower court) complains that the trial court was not justified by the evidence in finding May 15, 1871, to be the date of the appropriation of the water. Appellant testified that he had commenced to dig his appropriation ditches in the fall of 1870, and that he completed them in the spring of 1871. A witness called in his behalf testified that the said ditches had been "taken out" in 1871 "early in the spring, April or May," he was not sure which; that he (witness) had assisted in the construction of one of these ditches in the spring of 1871 and that at the time this ditch was the only one he had seen on the place. Another witness testified that appellant had no ditches on his land in 1872. A statutory declaration of water right, made and filed under oath, by appellant in 1885 (introduced in evidence), recited that appellant's appropriation of water from Willow creek had been made in the month of May, 1871. There was before the court also testimony in behalf of several other appropriators who claimed rights prior to appellant's. The court found these latter rights antedated appellant's; and while, from the testimony, it was impossible to determine the exact date of any one of them, established the dates as of May 1, 1871. There being evidence to support the lower court in deciding the relative priorities aforesaid, we are of opinion that appellant was not injured by the establishing of these dates as of May 1 1871, and his own as of May 15, 1871. In water-right suits, testimony relating to original appropriations, some of them made many years before the controversy arises, is very often indefinite as to dates, and when this condition arises at the end of the suit the trial court, for the purpose of framing a decree specifically settling the respective rights of parties, of necessity must often arbitrarily fix a particular day or days for appropriations of water. Therefore, while the selection of these specific days of May 1st and May 15th was, in a sense, arbitrary, it being incidental merely to the determination of the question of priority, the action of the court was proper.
Appellant claims again that the court erred in finding that one Thomas was entitled to 150 inches of the waters of Willow creek as of May 1, 1871. As to the alleged error in the matter of finding the particular day of the appropriation, the previous reasoning applies. While conceding that there is some testimony to support the finding as to the amount of water, appellant urges that the first of the Thomas appropriation ditches constructed was only used to reclaim land on the north side of the creek, and, regardless of the question of its capacity, had no more than 40 acres of land subject to its irrigation; and that it was found necessary to construct another ditch to reach that portion of the ranch on the south side of the creek. The test of the extent of an appropriation with reference to a subsequent right to the waters of a stream is dependent upon the capacity of the first ditch before such subsequent appropriation is made. When an owner or possessor of land makes an appropriation of water in excess of the needs of the particular portion of the land upon which he conveys the water, and other portions of his land also require irrigation, his water right is not limited by the requirements of the particular fraction. He may still, despite the fact that another's water right has attached, construct other ditches through his remaining land, provided that the total amount of water conveyed by all the ditches on his place does not exceed the original capacity of the first ditch. As between his appropriation and the subsequent water right, the capacity of the ditch by means of which he first made his appropriation is the test of the extent of it. There was no error, therefore, in the amount of the water awarded to Thomas.
The court found that the estate of John Gird, deceased, was entitled to 150 inches of the waters of Willow creek as of May 1, 1871. The testimony discloses these facts: The first appropriation of water on the 160-acre Gird ranch was made by one John Pickens, who settled upon it some time in 1869. Pickens sold the land to one Fahey some time later, who after taking possession, subsequently sold and turned it over to one Patrick, to whose possession one Bradburn succeeded as a purchaser. Gird acquired possession of the land in 1884 by trading ranches with the widow of Bradburn, and subsequently filed upon it as a homestead. All the transfers aforesaid were verbal. For many years it had been unsurveyed land. One settler followed another in the possession thereof. The possession of the land and the use of the water, however, were continuous on the part of John Gird and his predecessors. Appellant contends that all evidence as to any appropriation of water made by any possessor of the land prior to Grid was inadmissible, for the reason that a verbal sale of a water right operates as an...
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