Morris v. Bean

• Decision Date: 08 May 1906
• Citation: 146 F. 423
• Parties: MORRIS (Howell, Intervener) v. BEAN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

146 F. 423

MORRIS (Howell, Intervener) v. BEAN et al.

United States Circuit Court, D. Montana.

May 8, 1906

Syllabus by the Court

In a suit concerning water rights the thing in controversy is the right to the use of the water, and where that exceeds in value $2,000, exclusive of interest and costs, a Circuit Court of the United States has jurisdiction.

A citizen of one state may maintain a suit in a Circuit Court of the United States in another state to enjoin the unlawful diversion of water in the state where the suit is brought, which prevents its flowing to his lands in the state of his residence.

The complainant, a citizen and resident of Wyoming, instituted a suit in the Circuit Court of the United States for the District of Montana to enjoin the defendants, residents and citizens of that state, from diverting water from a stream rising in Montana and flowing into Wyoming. Held, that defendants could not justify their diversion of water in Montana in hostility to the rights of the complainant in Wyoming upon the ground that the laws of Montana authorize its citizens to appropriate water within the state. Held further, that the fact that the stream has its source in Montana, and from thence flows into Wyoming, does not affect the right to appropriate, but that the general doctrine of priority governs regardless of state lines.

An appropriation consists of the diversion of water and its application to some beneficial use. In the absence of any statute, if the work is prosecuted with reasonable diligence the right of the appropriator relates to the beginning of the work.

Where one appropriates under a statute, the recording of the claim is constructive notice, but such statutes do not preclude the taking of water for beneficial uses by methods other than those therein prescribed. The effect of the statutes is to preclude an appropriator from claiming, by the doctrine of relation, to the time when the work was begun as against one who does comply with the statutory requirements, and prosecutes the work to completion in accordance therewith.

Complainant without complying with the statutes of Wyoming, diverted water from Sage creek in that state. Under the statutes then in force, one so appropriating was precluded from giving evidence in any proceeding to enforce a claim to the water thereby appropriated, but the statute was repealed prior to the institution of this suit. Held, that the effect of the statute was not to deny the right to appropriate, and that its repeal removed the only obstacle to the assertion of his rights in the courts. Held, further, that the rights of complainant must be governed by the laws of Wyoming, where his appropriation was made.

One who appropriates water is entitled to the full amount appropriated, to the exclusion of all subsequent takers, and equity will not intervene to deprive one of the rights thus acquired by distributing the water to those subsequently claiming, even though the general benefits would be thereby increased.

The defendants acquired lands in the Crow Indian Reservation in Montana subsequent to appropriations made in Wyoming, and they claim riparian ownership as successors of the Indians. Held, that the Indians never had any riparian rights, the fee always having been in the government subject to their occupancy. Held, further, that appropriations could be made of waters running through the reservation which are superior to the rights of those subsequently becoming riparian owners.

While a riparian owner has the right to reasonably use the water of a stream, he cannot deprive his co-riparian owners of like use. In the absence of any testimony as to what is a reasonable use, there can be no decree regulating the use as between such owners.

The statute of limitations does not run upon a scrambling possession. The use must be adverse, exclusive, and uninterrupted under a claim of right, and the gradual and imperceptible encroachment by subsequent appropriators upon the rights of a prior appropriator will not permit the invoking of the statute as against the latter.

The provisions of the statute of Wyoming that failure to use water appropriated for a period of two years is to be construed as an abandonment applies to a voluntary act, and not to an enforced discontinuance.

One is not guilty of laches who complains of hostile diversion, and receives water when the same is turned down to him from time to time, or who is prevented from the use of water appropriated by him by gradual diminution through hostile diversions, unless such diversions continue with the acquiescence, knowledge, and consent of such appropriator.

One who goes upon a stream and diverts water must take notice of all prior appropriations, whether made pursuant to statutory notice or otherwise. The volume of water in the stream and the visible supply is notice of all waters appropriated, and where one takes subsequently to another of all the waters of a stream he cannot invoke the doctrine of estoppel as against a prior appropriator on the ground that such appropriator has stood by and permitted him to build up improvements on the strength of diversion of the water, for the reason that one is as much estopped as the other; the facts being within the knowledge of both.

Where various persons along a stream divert water in violation of the rights of a prior appropriator, without any community of action, nothing other than nominal damages can be awarded in a suit in equity to restrain the defendants from diverting the water.

McConnell & McConnell, James R. Goss, and Fred H. Hathorn, for complainant.

McConnell & McConnell and James R. Goss, for intervener.

George W. Pierson, and O. F. Goddard, for defendants.

WHITSON District Judge.

Sage creek is a tributary of the stream designated in these proceedings as Stinking Water river, but geographically known by the euphonious name of Shoshone. This creek rises in the state of Montana, and flows into that river in the state of Wyoming. The complainant, a citizen and resident of Wyoming, is the owner of 160 acres of agricultural land situated in that state, which is riparian to Sage creek. He settled in the year 1887 under the homestead law, and in due course received a patent dated the 12th day of February, 1902. The land being aris in character, and requiring irrigation for the raising of agricultural crops, in April, 1887, complainant construed a ditch by means of which he diverted water for the irrigation of it.

The intervener, Howell, alleges in his complaint that he is a citizen of the state of Wyoming. It is shown that he is the owner of 200 acres of agricultural land in that state of like character to that of the complainant. He constructed a ditch in August, 1890, for the irrigation of his land, and both the complainant and the intervener have used the water diverted by them ever since their respective diversions, except when prevented by the diversions of the defendants. The intervener has made entry and holds a final receipt. As to whether his land is riparian to Sage creek does not appear from the record. The defendants are all citizens and residents of the state of Montana. They claim the waters of Sage creek and Piney creek, its tributary, by virtue of diversions made by them, and the use of the water so diverted; they deny the rights of the complainant and intervener upon grounds which will hereinafter more fully appear, but are subsequent in time to both. Complainant seeks to enjoin the defendants from the diversion of water from Sage and Piney creeks in Montana to his deprivation of the use of the waters of Sage creek in Wyoming, and the intervener seeks the relief.

The cause was referred to the master, who has reported the testimony, together with his findings of fact and conclusions of law. Those findings to which exceptions have been taken, and those tendered and not found, need only be considered in a general way, leaving a specific mention of them to subsequent proceedings to be had in accordance with this opinion. One of the pivotal points upon which the case largely turns is the finding that the complainant had not at the time of the hearing complied with the laws of the state of Wyoming relating to the appropriation of water, and the conclusion that he is not entitled to any injunctive relief for that reason. As this incidentally involves the jurisdiction of the court, and as it is challenged upon other grounds, naturally, the power to consider the case must first be inquired into.

1. Jurisdiction. The objection to jurisdiction is threefold:

(a) The complainant filed no notice as a claimant to the waters of Sage creek, as required by the laws of Wyoming, and the master concluded that the filing of such notice was a prerequisite to the making of a valid appropriation. Relying upon that fact and the conclusion thus reached, it is contended that the jurisdiction fails because it cannot rest upon the citizenship of the intervener, claimed by the defendants to be the same as that of themselves, and, the complainant having failed to establish any right, it cannot rest upon his citizenship, and therefore a dismissal of the suit must follow. This involves the question whether complainant is an appropriator. It is conceded by his counsel, as the master found, that he did not comply with the statutory requirements of Wyoming. The inquiry is, could one seeking to make an appropriation at the time the complainant diverted and used water from Sage creek acquire the right to its use without complying with the statutes of that state? An appropriation of water consists in the taking or diversion of it, and its application to some beneficial purpose. 'Appropriation' is a much abused word. It is often loosely spoken of as the

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