Parsons v. Mussigbrod

• Decision Date: 19 March 1921
• Docket Number: 4727.
• Citation: 196 P. 528,59 Mont. 336
• Parties: PARSONS ET AL. v. MUSSIGBROD ET AL.
• Court: Montana Supreme Court

196 P. 528

59 Mont. 336

PARSONS ET AL. v. MUSSIGBROD ET AL.

No. 4727.

Supreme Court of Montana

March 19, 1921

Appeal from District Court, Beaverhead County; Joseph C. Smith Judge.

Action by G. H. Parsons and W. E. Parsons, copartners doing business under the firm name and style of Parsons & Parsons, and others, against H. S. Mussigbrod and others. From an order granting an injunction pendente lite, defendants appeal. Order affirmed.

J. J McDonald, of Philipsburg, Lew. L. & E. J. Callaway, of Dillon, and C. W. Robison, of Astoria, Or., for appellants.

J. A Groeneveld, of Butte, and Rodgers & Gilbert, of Dillon, for respondents.

GALEN J.

This is an appeal from an order granting an injunction pendente lite involving the waters of Mussigbrod creek, in Beaverhead county.

The complaint describes the lands owned by the plaintiffs respectively, and sets forth the water rights appurtenant thereto claimed by each of them; that their rights are superior to those of the defendants, and that the defendants "at divers and sundry times in the year 1919 and in the month of May, 1920, * * * did wrongfully divert said waters and deprive the plaintiffs," and each of them "from using said waters to which they are entitled." The complaint is verified positively, and upon June 1, 1920, the date of filing thereof a temporary restraining order and order to show cause why an injunction should not be issued restraining defendants from interfering with plaintiffs' water rights were issued. Defendants all appeared by general demurrer; and thereafter, on June 26, 1920, the matter came on for hearing upon the order to show cause. Testimony was introduced and received in support of plaintiffs' complaint at such hearing, but the defendants neither filed verified answers nor submitted any evidence whatsoever; and at the conclusion thereof the court refused defendants' motion to deny an injunction pending the action, and upon plaintiffs' application, issued an injunction against the defendants effective until further order "upon plaintiffs giving bond in the sum of $4,000 and installing proper headgates and weirs for measuring the water diverted by them." The action is yet to be tried on its merits.

Two specifications of error are assigned, presenting the single question whether the trial court erred in issuing the injunction.

Section 6643 of the Revised Codes provides, in part, as follows:

"An injunction order may be granted in the following cases: 1. When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. 2. When it shall appear by the complaint or affidavit that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the plaintiff."

And by section 6647 it is provided:

"If the court or judge deem it proper that the defendant, or any of the defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown at a specified time and place, why the injunction should not be granted, and the defendant may in the meantime be restrained. Cause may be shown upon affidavits or oral testimony."

It is noted that it is averred in the complaint, which is positively verified, as follows:

"That the said defendants at divers and sundry times during the year 1919 and the month of May, 1920, and at all times up to the filing of this complaint, did wrongfully divert said waters and deprive the plaintiffs and each of said plaintiffs of the use thereof, and did prevent the said plaintiffs, and each of said plaintiffs, from using said waters to which they are entitled and which belong to said plaintiffs, and to each of said plaintiffs, as hereinbefore set forth, all of which said waters were at all of said times by the plaintiffs, and each of said plaintiffs, greatly needed for the purposes aforesaid, and without the use of which the plaintiffs' crops, and each of said plaintiffs' crops and produce, did suffer, deteriorate, and diminish."

And further:

"That all of the diversions of said waters by said defendants have been made by them without right and wrongfully and with the purpose and intention of acquiring right to the same and against the rights of these plaintiffs as aforesaid, and that the defendants, and each of them, threaten to continue to so wrongfully and without right use the said waters as aforesaid in the future and to deprive these plaintiffs of the use thereof, and that they will so divert and use said waters as aforesaid, as plaintiffs are informed and verily believe, and...