Sloan v. Glancy

• Citation: 47 P. 334,19 Mont. 70
• Parties: SLOAN et al. v. GLANCY.
• Decision Date: 02 January 1897
• Court: United States State Supreme Court of Montana

47 P. 334

19 Mont. 70

SLOAN et al. v. GLANCY.

Supreme Court of Montana

January 2, 1897

Appeal from district court, Fergus county; Dudley Du Bose, Judge.

Suit by T. A. Sloan and others against John Glancy to enjoin the use of water from an irrigating ditch. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Suit by plaintiffs against the defendant to enjoin him from interfering with the plaintiffs' use and enjoyment of the waters of an irrigating ditch described in the complaint and situate in Fergus county. The plaintiffs have been in possession of certain agricultural lands in Fergus county for years prior to the commencement of this suit. In 1884 the plaintiff Culnan and one Howell, the grantors of plaintiffs B. McDonnell and T. McDonnell, appropriated 1,000 inches of the waters of Big Spring creek. The plaintiffs allege that this appropriation was by means of a ditch which tapped Big Spring creek, and that the plaintiffs B. and T. McDonnell, as grantees of Howell, now own said Howell's interest in said ditch and water. It is next alleged that about May 31 1890, the plaintiffs Sloan, Culnan, Clegg, E. McDonnell, B McDonnell, and T. McDonnell appropriated an additional 1,500 inches of the waters of said stream, by means of enlarging the ditch first above described, and that plaintiffs have used the waters flowing through the above-mentioned ditch until interfered with by the defendant; that about August 1892, and since then, defendant has deprived the plaintiffs of the use of the waters aforesaid, and caused them injury and damage. The defendant denied that Sloan, one of the plaintiffs, was one of the original appropriators of the water first mentioned in the complaint, or that Howell was the grantor of plaintiff Ed. McDonnell, or that Ed. McDonnell has any interest in the said ditch as grantee of Howell. He also denied the alleged appropriation of May 31, 1890, of an additional 1,500 inches of water; denied the capacity of the ditch constructed to be sufficient to convey 2,500 inches of water, or any greater amount than 1,000 inches; denied any wrongful diversion on his part, or any damage through any action of his, to the plaintiffs or any of them. The defendant affirmatively set forth that he and his grantors owned a certain piece of agricultural ground adjacent to Big Spring creek, and that 50 acres of his lands lie upon the northerly side of the creek, between the creek and the ditch of plaintiffs, and below the ditch; that the plaintiffs Culnan, Clegg, and McDonnell, together with John W. Howell appropriated certain waters of Big Spring creek by means of that certain ditch, described in the complaint; that at the time of such diversion and appropriation one Joel A. Harris defendant's grantor, owned and was in possession of the ground now owned by defendant; that the plaintiffs' said ditch is constructed across the lands owned by this defendant and formerly owned by said Harris; that at the time of the appropriation of the water in 1884, and before the construction of the ditch by plaintiffs across the lands of the defendant, and in consideration of their being allowed to construct and maintain the said ditch across the said lands, the plaintiffs Culnan, Clegg, and Ed. McDonnell, and Howell, the grantor of said plaintiffs B. and T. McDonnell, agreed with said Harris, defendant's grantor, that Harris should have such an interest in the said ditch and the waters therein as might be necessary to irrigate that portion of defendant's lands lying between the said ditch and the said Big Spring creek,--about 50 acres, more or less; that in pursuance of said agreement the said plaintiffs and the said Howell entered upon the construction and completed the said ditch over and across the said lands of this defendant; that afterwards, in 1886, the defendant bought from the said Harris all his right, title, and interest in and to the above-mentioned lands, together with the appurtenances, and the same were conveyed to the defendant by deed in writing. The defendant alleges that, at the time of the purchase, the plaintiffs Culnan, Clegg, Ed. McDonnell, and Howell promised to convey to the defendant such interest in the ditch and the right to the use in the waters therein as might be necessary to irrigate the 50 acres of ground before mentioned; that in 1887 the defendant took possession of the lands so purchased by him, and commenced to use the waters in the ditch, and has used the same every year since, and for more than 5 years has been in quiet and peaceable possession of as much of the water as was necessary to successfully irrigate his 50 acres of ground. Defendant prayed for a decree adjudging him to be entitled to the use of 75 inches of water flowing in the plaintiffs' said ditch, and that plaintiffs be enjoined from interfering with his right to the use of the same. The replication denied all the new matter set up in the answer. Special issues were submitted to the jury. The jury found that Culnan and Howell appropriated certain of the waters of Big Spring creek in 1884, but that the appropriation did not amount to 1,000 inches. It was also found that the plaintiffs, in May, 1890, made an additional appropriation by enlargement of the original ditch of Culnan and Howell, but that this appropriation did not amount to 1,500 inches. They found that defendant diverted the water from the plaintiffs' ditch in August, 1892, and thereafter, but that there were no damages done. In answer to the question submitted whether Culnan, Clegg, Ed. McDonnell, and Howell made an agreement with Harris, in 1884, by the terms of which agreement Harris permitted the above-named parties to construct a ditch across the land of Harris in consideration that Harris should have the use of sufficient water to irrigate the land below the ditch, the jury replied, "Yes;" that there was such an agreement made with Thomas Culnan under which Harris was entitled to 37 1/2 inches of water. They found against the defendant upon the issue of adverse possession. Thereafter the court adopted the findings of the jury, after modifying the one relating to the diversion by the defendant, so that the finding...