Musselshell Valley Farming & Livestock Co. v. Cooley
| Decision Date | 28 December 1929 |
| Docket Number | 6523. |
| Citation | 283 P. 213,86 Mont. 276 |
| Parties | MUSSELSHELL VALLEY FARMING & LIVESTOCK CO. v. COOLEY et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Musselsheli County; G. J. Jeffries Judge.
Action by the Musselshell Valley Farming & Livestock Company against Carrie S. Cooley and others. Judgment for plaintiff, and defendants appeal. Cause remanded with directions.
Ralph J. Anderson, of Lewistown, and W. W. Mercer, of Roundup, for appellants.
J Peter P. Healy, of Tacoma, Wash., and Johnston, Coleman & Jameson, of Billings, for respondent.
Many years ago, Handel Brothers, predecessors in interest of the plaintiff, and Cooley and Weaver, predecessors in interest of the defendants, were living upon lands which they owned in the valley of the Musselshell. Handel Brothers, intending to take out a ditch from the river to irrigate their lands posted a notice at the intended point of diversion on November 14, 1891, and within 20 days thereafter filed with the county clerk of the proper county a notice of the appropriation, in which they claimed 2,000 inches of water. Work upon the ditch was commenced immediately, and it was completed late in the fall of 1892. Water conveyed thereby was used for irrigating in the spring of 1893.
On January 20, 1892, Weaver and Jacobs filed with the county clerk a notice of appropriation, in which they also claimed 2,000 inches of the waters of the Musselshell river. In this notice they stated they had appropriated the water on January 14, 1892. The notice was properly verified by both appropriators. On February 13, 1892, another notice of appropriation was filed with the county clerk. This bears the names of Jacobs and Weaver, verified by Cooley on January 30. In this notice the date of appropriation is given as January 30, 1892, and the description of the lands intended to be irrigated is different from that contained in the notice of January 20. Some of the same land is contained in each notice. Evidently the first notice did not describe the land correctly. Cooley and Weaver constructed their ditch with reasonable diligence and got water on their lands about August 1, 1892. Apparently these neighbors continued the use of their ditches without disturbance until the Milwaukee Railroad was constructed along the Musselshell Valley in 1906 and 1907. The engineers constructing the railroad straightened the channel of the river and cut off the water from the headgates of both ditches. In order to remedy this mischief, the railway company placed a culvert underneath its track and rebuilt a portion of the Handel ditch, diverting the waters of the river through the culvert. With respect to the Cooley-Weaver ditch, which had become known as the Cooley-Jacobs ditch, Jacobs having succeeded to all the rights of Weaver, the company built a dam in the river by which it diverted water through a culvert underneath the railroad track into the old river channel, whereby the water is conducted to the original head of the Cooley-Jacobs ditch. The evidence indicates that the Jacobs and Cooley interests in the ditch and water right were equal.
On November 30, 1917, Handel Brothers purchased the Jacobs interest in the Cooley-Jacobs water right, less 25 inches. Thereafter the Handels conducted water from the Musselshell through the Cooley-Jacobs culvert, down the old channel of the river, and through the Cooley-Jacobs ditch to a point where that ditch and the Handel ditch are close together, where by means of a flume water was diverted from the Cooley-Jacobs into the Handel ditch.
Handel Brothers, as first parties, on March 25, 1919, entered into an agreement with the Director General of Railroads and the railway company, as second parties, whereby in consideration of $5,000 and other considerations, they released the railway company from its obligation to maintain culverts and channels across its right of way, and consented that the company might remove the same; they surrendered and abandoned their right to take the waters of the river at the point of diversion, which the railway company had provided for them, and the right to conduct such waters along any portion of the railway company's right of way, "save and except as hereinafter expressly granted." Except for the reservation they released and quitclaimed to the railway company all rights of way and easements held by them for the maintenance of the ditch over or across the right of way. They also released the second parties from "any and all damages and claims whatsoever which have heretofore arisen or which may hereafter arise from any changes or alterations made in the ditches or flumes as originally maintained by the first parties," and from any failure of the second parties to properly maintain the culverts, channels, ditches, or flumes between certain points. It was then recited in the agreement that "it is understood that it is the purpose of the first parties to hereafter obtain water" from the Cooley-Jacobs ditch, the material portion of which was described, and that the first parties desired to construct a ditch extending from a connection with the Cooley-Jacobs ditch to a connection with the Handel ditch at an approximate point, and the second parties granted them a right to construct and thereafter maintain a ditch across the railway company's right of way for that purpose. It was provided that the first parties should construct and maintain the necessary ditch at their own expense, and the second parties were absolved from any liability if the first parties were unable to make the connection with the Jacobs-Cooley ditch, or to get water therefrom.
It seems that work upon the Cooley-Jacobs ditch by plaintiff's agents brought about this lawsuit.
The court determined by its findings of fact, conclusions of law, and decree that plaintiff has a water right from the Musselshell river of 200 inches, appropriated as of date November 14, 1891, and defendants have a right of 200 inches as of date August 1, 1892, and that plaintiff has a right of 35 inches equal with defendants' water right; that neither plaintiff nor any of its predecessors in interest ever abandoned any of its water rights or any part thereof, or the right to the use of the original Handel Brothers' ditch, or of the Cooley-Jacobs ditch, or any part of either, except that part of the original Handel Brothers' ditch which was abandoned by agreement with the railway company, after plaintiff's predecessors in interest had acquired an undivided one-half interest in the Cooley-Jacobs ditch; that plaintiff is the owner of an undivided one-half interest in the Cooley-Jacobs ditch; that the capacity of the Cooley-Jacobs ditch in its present state of repair is sufficient to carry defendants' appropriation, but not to carry the Handel Brothers' appropriations in addition thereto, but that the ditch will, if properly repaired and maintained, be sufficient to carry the waters of both. The court ordered that plaintiff, "when the same will not interfere with defendants' right to use such ditch, as herein defined, shall have the right to enter into and upon said ditch and clean out and repair the same" so as to make it of sufficient capacity to carry all of the waters of the river to which both plaintiff and defendants are entitled under the decree; and that "whenever the capacity of the ditch is sufficient to divert and convey such additional amount of water both plaintiff and defendants are perpetually enjoined and restrained from interfering with the rights of the other therein." The defendants have appealed.
The specifications of error challenge: (1) The validity of the notice of appropriation of water right of Handel Brothers; (2) plaintiff's claim to a portion of the Jacobs water right, and its claim to an interest in the Jacobs-Cooley ditch; (3) the findings and conclusions on the question of abandonment; (4) the court's determination that the defendants' water right is of date August 1, 1892, instead of January 30, 1892.
1. It is not questioned that except for the verification, the notice of appropriation filed by Handel Brothers with the county clerk is valid on its face. But it appears on the face of the instrument that the appropriators were Fred W. Handel and George W. Handel, doing business under the firm name of Handel Brothers. The notice is signed Handel Brothers, by George W. Handel. The instrument was verified by George W. Handel before Fred W. Handel as notary public.
Section 1255, division 5, of the Compiled Statutes of 1887, which was in force when the water rights which are the subject of this action were appropriated, provides that any person hereafter desiring to appropriate water must post a notice in writing in a conspicuous place at the point of intended diversion, stating therein the number of inches claimed, the purpose for which it is claimed and the place of intended use, the means of diversion, the size of flume, ditch, pipe, or aqueduct in which he intends to divert it, the date of appropriation, and the name of the appropriator. ...
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