Raymond v. Wimsette
| Citation | 31 P. 537,12 Mont. 551 |
| Parties | RAYMOND v. WIMSETTE. |
| Decision Date | 28 November 1892 |
| Court | United States State Supreme Court of Montana |
1. In an action to enjoin defendant from diverting the waters of a creek, the complaint alleged that plaintiff's land was valuable for producing grain by irrigation; that plaintiff and his predecessors had appropriated the waters by ditches and had enjoyed their uninterrupted use till defendant's wrongful diversion; and that all the waters were necessary for irrigating plaintiff's land. Held, that the complaint was sufficiently traversed by an answer denying, on information and belief, plaintiff's ownership of the land, and denying that there was a creek having a regular and continuous flow from defendant's land to that of plaintiff; that grain could be grown on the land; that defendant had prevented plaintiff from using the waters of the creek to which he was entitled; or that plaintiff or his predecessors were ever the owners of all the waters of the creek, or had ever appropriated the same.
2. In such action the answer affirmatively alleged that the creek was not a running stream during the irrigation season, and that none of the waters flowing into it at defendant's ranch could, in the course of its natural flow, reach plaintiff's ranch, and stated that three miles below defendant's ranch the stream sank into the ground, and was lost to sight, and from that point to a point one mile below plaintiff's ranch, a distance of 15 miles, at places the channel was entirely dry. Held, that the answer stated a good defense.
3. The owner of land who has appropriated the waters of a stream for irrigation purposes cannot enjoin the diversion of waters from the stream by the owner of land 15 miles above him which water cannot reach plaintiff's land because of the drying up of the stream between his land and defendant's on the ground that the volume of water diverted might, in the event of unusual flow of water, cause some to flow in the stream to plaintiff's land.
4. Though allegations in an answer are uncertain, and there is no motion to make them more definite, the defect may be cured by evidence and findings, and is no ground for reversal on appeal.
Appeal from district court, Madison county; THOMAS J. GALBRAITH Judge.
Action by W. H. Raymond against Thomas Wimsette to enjoin defendant from diverting the waters of a creek, and to determine the priority of water rights therein. From a judgment for defendant, and an order denying a motion for a new trial plaintiff appeals. Affirmed.
The other facts fully appear in the following statement by HARWOOD, J.:
By this action plaintiff, Raymond, sought to obtain a decree establishing his right to the prior use of all the water of Sweetwater creek, in Madison county, as against defendant, Wimsette; and also to obtain a perpetual injunction restraining defendant from diverting and using any of the water of said creek. On the commencement of the action, a preliminary injunction was granted, requiring defendant to refrain from diverting and using any of the water of said creek; but on the trial of the action the court found defendant entitled to 45 inches thereof, prior to the rights of plaintiff therein; and also found plaintiff entitled to a large quantity of the water of said creek, to wit, 916 inches, by various appropriations, made in the years 1873, 1874, 1881, 1883, and 1884; and rendered judgment accordingly, with decree enjoining each of the parties from interfering with the rights of the other, as established by said judgment, and ordering that the costs of the action be paid in equal proportions by each of the respective parties. Plaintiff moved for a new trial, which was denied, by order of the court, and thereupon plaintiff appealed from that order, and from the judgment.
The first proposition urged by appellant is that defendant's answer fails to state facts sufficient to constitute a defense; and this assignment will require a consideration of the allegations of the complaint and the answer. The complaint contains averments usual in such cases, in substance as follows: That plaintiff is the owner and in possession of certain tracts of land, particularly described as situate in Madison county, state of Montana, which several tracts of land aggregate altogether 1,360 acres; that the same is agricultural land in character, dry and arid, but valuable for the production of grain, grasses, and vegetables, which can be grown thereon and matured with the aid of artificial irrigation, and not otherwise; that said land lies along on either side of a certain stream of water known as "Sweet water Creek;" that in order to make said land product ve, as aforesaid, plaintiff, and his predecessors in interest, at certain stated dates, appropriated certain stated quantities of the waters of said creek, and diverted the same upon said land, by the construction of irrigating ditches, all of which are described, and are alleged to have the capacity altogether of carrying 1,600 inches of water; that said creek contains at certain seasons 1,000 inches of water, but in dry seasons it has not more than 100 to 200 inches at the point where plaintiff's first ditch taps said creek; that plaintiff has enjoyed the uninterrupted use of the waters of said creek, since the times of appropriating the various quantities thereof, as alleged, to irrigate his said land, until the interruption of defendant, by his wrongful taking and diversion of a large quantity of said water, as alleged; that all the water of said creek is necessary for the irrigation of plaintiff's land, all of which the plaintiff and his predecessors in interest actually appropriated, and diverted and used the same, in the years 1873 and 1874, by the means and for the purposes aforesaid; that about the 15th of May, 1889, defendant wrongfully, and without plaintiff's consent, diverted 100 inches of the waters of said stream, to which plaintiff was entitled, and that on or about the 20th of May, 1890, defendant, without consent of plaintiff, and wrongfully, diverted about 200 inches of the waters of said stream, thereby depriving plaintiff of his right to the use of said water, as aforesaid; that defendant threatens to continue the diversion and use of said water, and to deprive the plaintiff thereof, thereby rendering valueless the land of plaintiff, and causing irreparable injury to plaintiff's rights; upon the statement of which facts plaintiff demanded the judgment mentioned above.
The answer of defendant to the allegations of plaintiff's complaint is, in substance, as follows: Defendant denies, on information and belief, that plaintiff is the owner of the land described in his complaint; "admits that plaintiff has at times used certain of the waters that have flowed down what is known as 'Sweetwater Creek' to plaintiff's said claims, but denies that there is any such stream known or called 'Sweetwater Creek,' which has a regular or continuous flow from the lands of defendant hereinafter described, down through or upon the lands claimed by plaintiff in his complaint;" denies that there can be annually grown or harvested upon the land of plaintiff crops of grain, vegetables, and grasses; admits that the said lands claimed by plaintiff are dry and arid, and will not produce the crops aforesaid, without irrigation; "denies that defendant has prevented plaintiff from using and enjoying the full benefit and uninterrupted use of the waters of said Sweetwater creek, to which plaintiff is, or has been, in any wise entitled; denies that the plaintiff is, or that his predecessors in interest ever were, the owner or owners of all waters of said stream, or of any interest therein exceeding 200 inches thereof;" denies that plaintiff, or his predecessors in interest, have ever "appropriated or used all or any of the waters of said stream which have been appropriated or used by this defendant;" denies that plaintiff, or his predecessors in interest, in the year 1873 or 1874, or at any other time, appropriated all of the water of said stream for agricultural purposes or otherwise; and further denies that plaintiff has used or enjoyed the uninterrupted usufructuary right of the waters of said creek (so called) upon the lands of plaintiff." "And for a further defense herein defendant expressly avers that one of his predecessors in interest, to wit, one Samuel Weightman, in the year 1881, settled upon the premises now possessed and claimed by defendant, to wit, about 160 acres of land, and during said year constructed an irrigating ditch, for the purpose of raising grain, grass, and other agricultural products on said land;" that by "means of said ditch there was, at the date aforesaid, appropriated by said Weightman, as aforesaid, near the headwaters of said Sweetwater creek, about 100 inches of water, measured according to the law of the state of Montana, passed by the fourteenth legislative assembly, approved March 12, 1885, and that defendant was, at the commencement of this suit, and now is, the owner of said Weightman ditch, and is entitled to the use of the waters thereof;" "that defendant, through the original appropriation of said water by Weightman, as aforesaid, and his predecessors in interest, has continuously used and enjoyed the benefit thereof, from year to year, until the injunction served by the plaintiff against the defendant herein;" "that the lands possessed and claimed by defendant, as aforesaid, are chiefly dry and...
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