Peck v. Simon

• Decision Date: 27 November 1935
• Docket Number: 7402.
• Citation: 52 P.2d 164,101 Mont. 12
• Parties: PECK v. SIMON et al.
• Court: Montana Supreme Court

52 P.2d 164

101 Mont. 12

PECK v. SIMON et al.

No. 7402.

Supreme Court of Montana

November 27, 1935

Rehearing Denied Dec. 28, 1935.

Appeal from Second Judicial District Court, Silver Bow County Benjamin E. Berg, Presiding Judge.

Suit by Louise S. Peck, executrix of the last will and testament of Earl A. Peck, deceased, against Nat Simon, Pasquale Simon Alex Simon, and others. From the judgment rendered, the named parties appeal, and the appeals were heard together.

Remanded with directions to modify findings of fact and conclusions of law in accordance with opinion, and when so modified judgment to stand affirmed.

See, also, Peck v. Bersanti, 52 P.2d 168.

W. J. Paul, of Deer Lodge, for appellants.

John K. Claxton and John A. Shelton, both of Butte, for respondent.

ANDERSON Justice.

Plaintiff brought this action in the district court of Silver Bow county to secure the adjudication of a water right on the stream known as Browns Gulch and its tributaries in that county. Numerous parties defendant were named in the complaint. Findings of fact and conclusions of law were made and filed, and a decree was entered in conformity therewith, adjudging that plaintiff was the owner of two rights, namely, one of 75 inches, the priority of which antedated the year 1874, and a second of 200 inches which antedated the year 1875. Both of these rights are out of Browns Gulch. Likewise, the court made findings of fact, conclusions of law, and decree with reference to the rights of the defendants Simon, as follows: 35 inches as of date of June 1, 1882, appropriated out of Browns Gulch; 35 inches as of the same date appropriated from Hail Columbia Gulch; and 27 inches appropriated as of like date out of Bull Run Gulch; also a right of 15 inches as of July 1, 1898, appropriated out of Browns Gulch.

The defendants Simon perfected an appeal to this court from the judgment, and likewise at a later date an appeal was perfected on behalf of the plaintiff. Many other rights are adjudicated by the decree, but aside from the parties to the suit mentioned supra, none of the other parties defendant have appeared or perfected appeals to this court. None of the rights of the other defendants who have neither appeared nor appealed are sought to be reviewed by either of the appeals now before us for consideration. These appeals were argued the same day, and both will be considered on the merits in this opinion.

The defendants Simon on their appeal have no complaint as to the amount of water awarded to them under the decree, but contend that their appropriations should have an earlier date as of the year 1875, whereas plaintiff by her appeal with reference to the rights of defendants Simon contends that they were entitled to a right of no earlier date than the year 1888. Defendants Simon, as to plaintiff's rights, contend that as to a portion of her award it should be no earlier than May 1, 1882, and as to other portions no earlier than the year 1885. Plaintiff contends on her appeal that as to her right she should have received at least an award of 400 inches under the two appropriations, 100 inches under the Wright ditch and 300 under the Gassert ditch. The parties in their respective appeals by appropriate and numerous specifications of error have presented the foregoing questions for consideration.

We will first consider the contentions of the parties with reference to the rights of the defendants Simon. They acquired the lands to which their rights are appurtenant by contract entered into in the year 1888; they entered into possession the first of the year 1889 and have continued in possession of the lands and used water thereon since that date. It appears from the evidence that a predecessor in interest of theirs, one Carver, was in the possession of these lands for a number of years, and, according to some of the witnesses at least, irrigated them and produced hay thereon. The lands of the defendants Simon are irrigated by a ditch proceeding from a point on Browns Gulch along the east side of that stream, crossing Hail Columbia Gulch, and, lower down, Bull Run Gulch. A short ditch from Hail Columbia Gulch diverts water from that stream into the main ditch, and a like ditch from Bull Run Gulch delivers water from that stream into the same ditch. A considerable portion of the lands of these defendants which are irrigated lie below the crossing of the main ditch over Bull Run Gulch. Some of their lands lie west of Browns Gulch, and these are irrigated by means of a flume across that stream taking water from the same ditch.

In order to dispose of the contentions of the parties with reference to these rights, it becomes necessary to review the testimony. William Thomas, who was a brother of Mrs. Carver, the wife of the occupant and owner of these lands for a number of years, testified that in the year 1877 he assisted his brother-in-law, Carver, during the haying season the latter part of July or first part of August for a period of some three weeks; that during this employment he cut the hay on the lands and observed the ditches which were substantially in the same location as at the time of the trial, and that when he went there he observed water running in the ditches which was shut off in order to facilitate the harvesting operations. He testified as to the size of the ditches and the amount of hay harvested. He was at that time, according to his testimony, 23 or 24 years old.

Mrs. Mary Jones testified that she was a sister of Mrs. Carver, and that her sister married when she (witness) was ten years of age; that her sister and her husband within a year or so after their marriage removed to the lands which are now a portion of plaintiff's ranch, but that Carver owned and occupied these lands now belonging to the defendants Simon, and that she spent her summers with the Carvers until she herself was married. She testified that she recalled going out to these lands with her sister picking gooseberries, and that in the summer of 1877 she saw her brother stacking hay there that year; saw the ditches and water in them on the lands.

Quenton Owen, a witness on behalf of defendants, testified that he stacked hay on this ranch in the summer of 1882; saw the ditches, and the crops indicated that water had been used that year, and that the lands were of such a nature and character as to require irrigation to produce a successful crop. Later that fall he saw water in the ditches and a man in the field with a shovel, but he did not observe this person engaged in irrigation.

Plaintiff called three witnesses in rebuttal, and argues that, in view of their testimony, the court was not warranted in finding the date of appropriation earlier than the year 1888. One of these witnesses, Edward Travers, testified that he arrived in Browns Gulch in the spring of 1884 and worked there in connection with a timber flume for a period of about two and a half months. He was not there during the haying season. He said that he went fishing during the summer along Browns Gulch, and in answer to an inquiry as to whether any water had been taken out of the gulch in 1884 and used for irrigation around where he worked, which was on or nearby the lands in question, he replied, "Well, there was none taken out as far as I seen to my knowledge outside of what was taken out on the place we called the Foster place." The Foster place is not on any of the lands owned by either of the parties before the court on this appeal. He said the ditches were taken out on the Simon place some time in 1888.

William Geary, another witness, testified that he lived in Browns Gulch from 1880 to 1886; that he went fishing there in 1881 and never saw any ditches, but that he was not looking for ditches.

E. D. Elderkin testified that he lived in Browns Gulch, and his testimony on this point on direct examination is confined to one question and answer as follows: "Q. In the year 1883 did you ever see any ditch, artificial ditch or channel, that took water from any of these springs for the purpose of irrigation? A. No I did not." On cross-examination he said he never saw any ditches in that part of the country at that time.

In further rebuttal, plaintiff offered a water right location filed for record on October 7, 1878, made by Charles H Carver, the predecessor in interest of the defendants, which, omitting the verification, in the body of the instrument, reads as follows: "To all whom it may concern: Notice is hereby given that the...