Quigley v. McIntosh

• Decision Date: 21 June 1940
• Docket Number: 7839.
• Citation: 103 P.2d 1067,110 Mont. 495
• Parties: QUIGLEY et al. v. McINTOSH et al.
• Court: Montana Supreme Court

103 P.2d 1067

110 Mont. 495

QUIGLEY et al. v. McINTOSH et al.

No. 7839.

Supreme Court of Montana

June 21, 1940

Rehearing Denied July 8, 1940.

Appeal from District Court, Third District, Powell County; R. E McHugh, Judge.

Proceeding by William L. McIntosh and another against John R. Quigley and others for instructions to a water commissioner appointed by court. From an order giving instructions to the water commissioner, John R. Quigley and others appeal.

Affirmed.

ANGSTMAN J., dissenting in part, and MORRIS, J., dissenting.

S. P Wilson, of Deer Lodge, for appellants.

Lew L. Callaway and Loble & Adair, all of Helena, for respondents.

JOHNSON Chief Justice.

In 1913 a final decree was entered adjudicating the water rights of Three Mile Creek in Powell county. This appeal is from an order made after final judgment;--an order giving instructions to a water commissioner appointed by the court.

The parties now involved, or their predecessors, were all parties to the 1913 adjudication, with the exception of the water commissioner, who, as will appear obvious, is a necessary party. While there are several appellants, we shall refer to them as appellants "Quigley" or "Kimmerly," as the case may be, since they are the principal ones involved. McIntosh and Gravely are the respondents. They hold water rights which are nearly all junior to those of appellants. The Quigleys are located at the head of the creek, and the Kimmerlys at the foot thereof. The lands of the respondents and all of the other users lie between those two.

This proceeding was instituted in 1937 under the provisions of Chapter 82, Revised Codes (secs. 7136-7159.) Section 7150 provides, in substance, that any person entitled to use and using water rights from an adjudicated stream under a "decree or decrees," who is dissatisfied with the method of distribution of the water thereof by a water commissioner, and who claims to be entitled to more water than he is receiving, or is entitled to a right prior to that allowed him by the water commissioner, may file a written complaint setting forth the facts of such claim.

Procedure for the trial of such complaints is outlined and provision is made for examination of parties and witnesses in support of or against the complaint. "Upon the determination of the hearing, the judge shall make such findings and order as he may deem just and proper in the premises. If it shall appear to the judge that the water commissioner or water commissioners have not properly distributed the water according to the provisions of the decree, then the judge shall give the proper instructions for such distribution."

The record of the hearing is quite voluminous and approximately 650 pages of testimony were taken. After an extended study the trial judge made extensive findings of fact and conclusions of law, rendered thirteen orders with respect to the distribution and use of the waters and ditches, and in conformity with all of the foregoing rendered sixteen instructions for the water commissioner's guidance in the performance of his statutory duties.

It is the contention of appellants, as described by some fifty-seven specifications of error, that the orders made and the instructions given were beyond the scope and purport of the remedy provided by the above sections, particularly 7150. Their theory is that the water commissioner law never contemplated the distribution and supervision of water and water rights in the manner attempted by the judge. They assert that to uphold the orders and instructions given will, in effect, approve and confirm substantial modifications of the original decree, and will sanction the adjudication of substantive property rights, such as restricting the use of the water to a particular watershed or to certain parcels of land, in a manner not provided in the original decree. They assert that it was never intended by the legislature that such rights should be adjudicated and determined informally under a statute which infers that a written complaint shall constitute the only pleading necessary to invoke the remedy and secure the relief therein provided, which was the procedure pursued in the case at bar.

Respondents, on the other hand, contend that the proceedings did no more than determine that the water commissioner had not been distributing the water to the respective users in accordance with the adjudication, and that the orders and instructions given simply construed and clarified the provisions of the decree, and made certain the duties of the water commissioner in those respects.

It has previously been held by this court that under section 7150 et seq., the whole question for determination in such a proceeding is whether the water commissioner has been distributing the water to the respective users in accordance with the decree or decrees. Gans & Klein Investment Co. v. Sanford et al., 91 Mont. 512, 2 P.2d 808. This logically tenders for consideration the question whether the judge properly instructed the water commissioner. The duties and authority of a water commissioner are prescribed by statute. He only has authority to distribute the water to the parties "according to their rights as fixed by such decree or decrees." Sec. 7136. The law does not give him complete and exclusive jurisdiction to control the stream as such (State ex rel. Reeder v. District Court, 100 Mont. 376, 47 P.2d 653); nor is it simply his duty to distribute certain quantities of water to the parties without reference to the purposes, uses and needs adjudicated in the decree.

It then becomes obvious that the decree must be the yardstick by which the commissioner shall proceed, and, of necessity, must likewise constitute the yardstick for the consideration of instructions given to him by the court. It is, therefore, necessary to look to the controlling provisions of the decree for the authority of both court and commissioner. Whether the face of the decree itself is necessarily the sole authority regardless of its form, is one of the questions to be decided here.

In this instance, generally speaking, the total of the decreed rights exceeds by far the natural flow of the stream in normal periods, and certainly at times of low water. As usual in such matters, the decreed amounts were much less than those claimed by the parties to the action, and much less than would have been necessary to irrigate all their land.

With respect to the claims of Quigley, there was decreed to him and his predecessors an aggregate of 736 inches of water as of different dates of priority. The court specifically found that the lands irrigated by Quigley through the "Gallagher" ditch, 100 inches, and the "Hanley" ditch, 70 inches, were situated in the basin of Three Mile Creek in close proximity to and along both sides thereof, and the award was clearly made for that express purpose. Quigley also was awarded rights of 100 inches as of May 29, 1902, and 200 inches as of May 16, 1907. Permission was specifically given him to make beneficial use of the last-mentioned amounts in the Six Mile Creek basin and watershed, the same being outside and beyond the Three Mile Creek watershed. This use, however, was expressly stated to be subject to all other decreed rights as such appropriations and rights were fixed and mentioned in the court's findings of fact and conclusions of law. Although 200 inches of these two rights appear to be junior in time to all other decreed rights on the stream, the other 100-inch right is senior in time to several others as fixed by the court. The remaining 266 inches of the Quigley rights were decreed without express restriction as to place of use, but they were necessarily awarded on the basis of the proof of beneficial use made thereof at the time of the decree and the facilities for conveying the water to the place of use.

The rights of the other users on the stream, including the Kimmerlys, were decreed to them in the same manner as the 266 inches to the Quigleys--some of whom also irrigated outside of the Three Mile watershed, viz: "for the purpose of irrigating the lands belonging to them and described in their [pleadings] and for domestic and other useful purposes, appropriated and diverted from said Three Mile Creek by means of ditches of sufficient capacity to carry to same certain of the waters of said Three Mile Creek of the following number of inches," etc.

Thus it will be observed that the same general language was used with reference to the Quigley 266-inch rights that was employed as to the other rights. The qualifying language as to certain of Quigley's rights above noted came in in another part of the decree and cannot fairly be said to have any special restrictive effect on the 266 inches of these particular Quigley rights. It is thus apparent that the court in its findings and conclusions did not specify particularly the acreage upon which the waters should be used other than upon the ranches described in the pleadings. An examination of the property plats of the parties introduced at the original trial and in this proceeding, in conjunction with the testimony taken at the more recent hearing, obviously shows that in some instances, at least, large areas of land were described in the pleadings far in excess of what the final awards could have irrigated, even assuming that the actual or contemplated use had been proven as to the entire holdings pleaded. With this explanation in mind, we proceed to consider the orders made and instructions given by the court to the water commissioner.

It is significant that, as a preface to the orders and instructions, the judge declared that "the decree governs." Consequently, his first order was "that all waters of Three Mile Creek shall be admeasured and...