BLAKE
C.
This is
an appeal from a judgment entered in favor of defendant for
costs after the motion for non suit was sustained. The
defendant is a corporation organized under the laws of the
state of New Jersey, and doing business in the state of
Montana. The plaintiff filed his complaint August 9, 1902
and prayed for damages in the sum of $150.000, and also for
an injunction restraining the defendant from using certain
water, and interfering with the rights of plaintiff to the
further enjoyment thereof. The material allegations of the
complaint are that plaintiff since the year 1889, by
appropriation under the laws of the state of Montana,
"has been the owner, in possession, and entitled to the
possession, use, and enjoyment, of five thousand inches"
of the waters of the Big Hole river, in the county of Silver
Bow; that plaintiff entered, into an agreement with the Big
Hole Lumber Company, a corporation organized under the laws
of the state of Montana, whereby said company entered into
the possession of the right of plaintiff to said water, and,
with the consent of plaintiff, constructed at great expense a
dam across said river, and erected "a mill and flume, by
means of which plaintiff used the said water for milling and
fluming purposes"; that up to the year 1899
"plaintiff had so made and was making a beneficial use
of the water"; and that in said year 1899 the defendant
erected a dam and other structures below the place of
appropriation by plaintiff, and "caused the water of the
said river to back up, overflow, and flood plaintiff's
dam and mill site, and a portion of the said flume, by reason
of which the same have become useless, and cannot be used for
the purpose for which they were constructed, to the damage of
the plaintiff in the sum of one hundred and fifty thousand
dollars." The answer denies these allegations, and avers
that said Big Hole Lumber Company used and possessed said
water of said Big Hole river, and constructed said dam, mill,
and flume, for its exclusive benefit and without the consent
of the plaintiff. The action was tried with a jury, and at
the conclusion of the testimony the court granted the motion
of the defendant for a nonsuit, and its ruling must be
reviewed.
The
plaintiff testified that he located the water June 1, 1889,
and put up the notice which was received in evidence without
objection, to wit:
"Notice
is hereby given to all persons concerned, that Frank R.
Miles, a citizen of the United States, and a resident of
Deer Lodge County, Montana Territory, does hereby claim and
intend to appropriate and use the water of the Big Hole
River, in Silver Bow County, and Territory aforesaid as
follows, to wit:
"1st.
The number of inches of the water of the said Big Hole
river, claimed by me is five thousand (5,000) inches, to
be measured as provided by an Act of the Legislative
Assembly of the Territory of Montana, approved March
12th, 1885.
"2nd.
The purpose for which said water is claimed is for
driving, Milling, Smelting, Fluming, Irrigating,
Mechanical and all other useful purposes. And the place
of the intended use is upon Section No. 18, Township No.
1 South, Range 9 West of the principal meridian, Montana
Territory.
"3rd.
The means of diversion of said water will be by a dam,
and flume and ditch.
"4th.
The date of the appropriation is the date of this notice.
"5th.
The name of the appropriator is F. R. Miles.
"6th
The name of the stream from which the appropriation and
diversion of said waters is to be made is as above stated
the Big Hole River, and is a tributary of the Jefferson
River in Madison County, Montana Territory.
"7th.
The place of appropriation of said water in said Big Hole
River, will be upon Section No. 18, Township No. 1,
South, Range No. 9, West of the principal Meridian,
Montana Territory. And the point of diversion of said
water will be about three and a half miles up said river
from Divide Station on the Utah & Northern Railway in
Silver Bow County, and below Dewey's Flat, in
Beaverhead County and Territory aforesaid, and a notice
of this claim in writing is posted in a conspicuous place
on a stump on the east bank of said Big Hole river at the
point of intended diversion. Witness my hand this 1st day
of June, 1889. Frank R. Miles."
This
notice was duly verified and filed for record June 3, 1889,
in the office of the county recorder of the county of Silver
Bow.
The
plaintiff further testified: "After locating the water,
I went over, within the time specified by law, to run out my
ditch or flume. Took a level from my home, and went over
there some time in June, after the water was located; and I
hired a man to help me carry the rod. *** I ran out my line
of ditch, and it took me nearly two days to survey my ditch
or flume where I intended to divert the water; and it was all
because of my agreement with Trask that I did not put my
flume in at that time. Mr. Trask was the general manager of
the Big Hole
>ber Company. *** As to the man> and by whom
the diversion of my water was made: The Big Hole Lumber
Company, and Mr. Trask as superintendent of the company,
under his agreement with me, constructed a dam according to
my plans on the site I had located. I ran my ditch on the
Silver Bow side of the river, *** and the dam was constructed
according to my plans, and the water was diverted; and he
took me there afterwards to show me that he had complied with
all the conditions of our agreement. As to the agreement I
had with Trask: When I was there surveying the ditch, he came
down the river from Dewey's Flat, or from his operations
below on the river some place, and he asked me if I was going
to represent my water right, and I told him that I certainly
was. *** He said there was not water enough there to cover
both locations, and he says, 'There is only about timber
enough to last four or five years, and we will be through
with it, and the water is yours;' and under that
agreement I drew the plans, and the dam was built according
to these plans, and he carried out his agreement with me. ***
The water was used under this agreement by the Big Hole
Lumber Company. They constructed a dam, built a flume, and
they moved the mill from the lower dam, and allowed the lower
dam to wash out, and paid no attention to it. They used it
until I went to the Klondike in 1897. I saw Mr. Trask at that
time, and he was acting on there the same as before. I made
this arrangement with the Big Hole Lumber Company through
Trask, in June, 1889, the same year I located the water. Mr.
Trask had succeeded me as superintendent of the Big Hole
Lumber Company in April previous. *** A man by the name of
Frank Horton helped me survey the ditch. *** The flume was
between two and two and a half miles long. *** There was five
thousand inches of water diverted and used by the High Hole
Lumber Company under my appropriation and agreement with
Trask. *** I first learned that the Big Hole Lumber Company
had quit up there when I returned from the Klondike in 1899.
I learned that the Big Hole Lumber Company had sold out, and
I made inquiry about my water right. I asked Mr. Trask what
had become of my water right, and he said. *** He told me
that W. A. Clark had sold my water right with the balance of
the outfit. I learned that other parties that he had sold to
had constructed a dam, and I learned that the firm of
Winters, Parsons & Boomer were the constructed that put up
this dam; and I went over to Mr. Winters' office for
information, and he told me that they had constructed a dam,
and where they had constructed it--that it had flooded the
old Big Hole Lumber Company dam. *** What I mean by saying
the old dam had been flooded is that the new dam was so much
higher than the old one that it had overflowed it. I have
seen the new dam recently. *** On the very same location that
I located that dam was built, and covers the other dam. *** I
never made any conveyance of my right, to my recollection.
The Butte Electric & Power Company, the defendant in this
case, is using the water now. *** The defendant's use of
the water has rendered my point of diversion absolutely
useless-destroyed it. The water is so high I couldn't get
down to where I made my location. They control it, with their
dam. They can lower the water. They control it, and I
couldn't get to my point of diversion; that is, the crown
of the old dam. It is about forty feet under water. *** After
Trask quit using the water I didn't do anything toward
using it, except bring this suit. *** Q. What was your
intention in location and appropriating this water. *** A. My
intention was that, knowing that a good location was wanted
for a smelter site, to hold it for that purpose. *** I
consider that my damages are reasonably worth the amount of
one hundred and fifty thousand dollars, taking into
consideration the value of that location."
On
cross-examination the plaintiff testified: "We chained
out and staked the line of the ditch. Didn't make any
record of the fact of running this ditch, or put it in
writing, any further than to keep an account of the distance
chained--just an account of the number of chains. Didn't
file any record anywhere of the mill site, or reduce to any
writing this survey, nor of the dam site, except what appears
of record in the location of the water right. *** At the time
I made this location and filed the notice I was...
