Meagher v. Hardenbrook

• Decision Date: 28 December 1891
• Citation: 28 P. 451,11 Mont. 385
• Parties: MEAGHER v. HARDENBROOK et al.
• Court: Montana Supreme Court

28 P. 451

11 Mont. 385

MEAGHER v. HARDENBROOK et al.

Supreme Court of Montana

December 28, 1891

Appeal from district court, Deer Lodge county; D. M. DURFEE, Judge.

Action by Patrick H. Meagher against Charles K. Hardenbrook, John Spencer, and others to determine the rights of the parties to the use of the water of a certain stream. From a finding and judgment determining such rights defendants Spencer and others appeal. Affirmed.

Cole & Whitehill, for appellants.

Robinson & Stapleton and Forbis & Forbis, for respondent.

HARDWOOD J.

Action to determine the several rights of plaintiff and 40 persons named as defendants, in and to the waters of "Race-Track Creek," a natural stream of water situate in Deer Lodge county, tributary to Deer Lodge river. The action was tried by the court sitting without a jury, and by findings made in writing, and judgment accordingly, the court found and determined the respective rights of all the parties to the action in and to the waters of said creek, and also the relation of such water-rights to one another as to priority. All parties having set up their respective claims to certain portions of the water of said creek by pleading, a stipulation was made by them through their counsel to the effect that at the trial each party, whether plaintiff or defendant, should be deemed to have denied all allegations of the pleadings of every other party to the action claiming right to any of the waters of said creek, and that each party might introduce evidence "to show non-appropriation, non-user, or abandonment by the plaintiff or any of the defendants."

The questions brought here for review by this appeal arose between certain defendants. The court found and adjudged that defendants C. K. Hardenbrook and R. S. Kelly were entitled to 400 inches of the waters of said creek, by reason of an appropriation thereof made in the year 1869, which finding and judgment made the water-right of defendants Harden-brook and Kelley the fourth in the order of appropriations. From this portion of the judgment certain other defendants, whose rights were adjudged to be subsequent to that of Hardenbrook and Kelley, have appealed. The findings of fact by the court in relation to the water-rights of defendants Hardenbrook and Kelley, upon which the court pronounced judgment in their favor, are as follows: "Findings for the defendants R S. Kelley and C. K. Hardenbrook. The court finds as facts that the Miners' ditch was commenced to be surveyed in the latter part of the year 1869; that it was built and owned by the owners of certain placer mines, situated in two or three different gulches, from 10 to 12 miles from the head of the ditch; that water was turned into the ditch as far as Prairie and Spring gulches in the summer of 1871 and into Antelope gulch a year later; that the ownership of the ditch was divided into 24 parts, each part being represented by a share; that at the time of the commencement of this action the defendant R. S. Kelley was the owner of three shares and the defendant C. K. Hardenbrook was the owner of eight shares; that none of the waters of the Miners' ditch have been used on placer mining ground since the year 1886; that the Miners' ditch has been abandoned since the year 1886 that waters claimed as belonging to the Miners' ditch were turned into Race-Track creek in the year 1886, and were recaptured by the defendant C. K. Hardenbrook, and used for the purpose of irrigating land belonging to him, to the extent of 400 inches; that the remaining amount of water belonging to the Miners' ditch has been abandoned by the owners thereof from and after the year 1886; that the ditches owned or used by the defendant C. K. Hardenbrook are of sufficient capacity to carry said amount of 400 inches." The point of contention on the part of appellants is that upon said facts found it was error to adjudge that the appropriation...