Montana Co. v. Gehring

• Decision Date: 19 June 1896
• Docket Number: 245.
• Citation: 75 F. 384
• Parties: MONTANA CO., Limited, v. GEHRING.
• Court: U.S. Court of Appeals — Ninth Circuit

75 F. 384

MONTANA CO., Limited, v. GEHRING.

No. 245.

United States Court of Appeals, Ninth Circuit.

June 19, 1896

This action was originally brought in one of the courts of the state of Montana, to recover a judgment for damages, and also an injunction restraining the defendant to the suit from continuing the acts complained of. The defendant, being a foreign corporation, procured the transfer of the suit from the state court to the United States circuit court for the district of Montana, and in that court the plaintiff recast his pleadings so as to conform to the rules of practice prevailing in the federal courts. In his complaint there filed, and upon which the case was tried in the court below the plaintiff alleged his ownership of certain described agricultural land occupied by himself and family as a homestead, and which he cultivated and farmed; that through his tract of land flows a stream of water called 'Silver Creek,' and that the plaintiff acquired, and ever since the year 1865, has held, the right to use 100 inches statutory measurement, of the waters of that creek, for the purpose of irrigating his land, which, without such irrigation, would be, to a large extent, worthless; that the right so acquired and held by the plaintiff in and to the waters of Silver creek were to such waters in their natural and pure condition; that the defendant company is engaged in the business of quartz mining; that its mill is situated on Silver creek, about 10 miles above the land of the plaintiff and that its ores are crushed in the mill by stamps through the use of water; and that the waters used by the company in its crushing process are the waters of Silver creek; and that, in and about the crushing of its ores, the defendant company has, for three or four years last past, and yet is using the waters of Silver creek, taking them from the stream in their pure and natural condition, and returning them again to the stream at points immediately below the mill; and that when so returned to the channel of the creek, after passing through the mill, the waters are charged and laden with sediment and tailings; and that the sediment and tailings so discharged into the creek, by reason of the carelessness and negligence of the company in failing to properly crib and settle the same, and of the defective appliances used by the company therefor, are carried down the stream, and thereby to and upon the land of the plaintiff; and that the water of the creek, when it reaches the land of the plaintiff, by reason of being charged with debris, is wholly unfit for irrigating purposes, and, when spread upon the land of the plaintiff the sediment is deposited, and has been so deposited during the time specified, in many places to a depth of two feet, covering the plaintiff's meadow land, destroying the natural grasses, rendering the same worthless and unproductive, and filling the plaintiff's irrigating ditches, and destroying their usefulness; and that the rights of the plaintiff to the waters of Silver creek were acquired many years prior to any use of the waters or right to the use of the waters of that creek by the defendant company; and that, by reason of the acts alleged, the plaintiff has suffered damages during the years 1889, 1890, and in 1892, up to the commencement of the suit, to his crops and his land, to the extent of $500 a year. And, by way of supplemental complaint, the plaintiff alleged that he has been further damaged by the continuation of the alleged illegal acts of the defendant company down to and including the month of September, 1892, in the further sum of $2,500. The answer of the defendant company put in issue all of the facts so alleged by the plaintiff, except the fact that the defendant company used the waters of Silver creek in its quartz mill, along Silver creek, and above the land described in the complaint of the plaintiff, the defendant company has erected a series of dams and reservoirs, whereby the tailings, sand, etc., from its quartz mill are held back and impounded so that the waters of Silver creek, when they finally leave the premises of the defendant company, though somewhat discolored by use by the defendant in its quartz mill, are reasonably fit for the irrigation of agricultural crops, and that the waters are not sufficiently charged with sand or tailings from the mill to materially injure the meadow or land of the plaintiff when used thereon for irrigation. The answer further avers that at all times since the plaintiff has had any right to the use of the waters of Silver creek, if such right he has, the waters of that stream have been used for mining purposes at points above his land, and have at all times since plaintiff had any right thereto carried down to his land more or less sand and...