State ex rel. Crowley v. District Court of Sixth Judicial Dist. in and for Gallatin County

• Decision Date: 11 March 1939
• Docket Number: 7923.
• Parties: STATE ex rel. CROWLEY v. DISTRICT COURT OF SIXTH JUDICIAL DIST. IN AND FOR GALLATIN COUNTY et al.
• Court: Montana Supreme Court

88 P.2d 23

108 Mont. 89

STATE ex rel. CROWLEY v. DISTRICT COURT OF SIXTH JUDICIAL DIST. IN AND FOR GALLATIN COUNTY et al.

No. 7923.

Supreme Court of Montana

March 11, 1939

Proceeding by the State of Montana, on the relation of John Crowley against the District Court of the Sixth Judicial District of the State of Montana, in and for the County of Gallatin, and the Honorable Benjamin E. Berg, Judge thereof, for a writ of supervisory control or other appropriate writ. On motion to quash and dismiss.

Motion overruled and application for writ of supervisory control granted.

MORRIS J., dissenting.

Wellington D. Rankin, of Helena, for relator.

John Hauck and L. V. Ketter, both of Butte, for respondents.

JOHNSON Chief Justice.

This is an application for a writ of supervisory control or other appropriate writ, directing the district court of the Sixth Judicial District, in and for Gallatin county, and the judge thereof, to revoke an order sustaining defendants' general demurrers to the second, fifth and eighth causes of action in plaintiff's amended complaint in a cause entitled John Crowley v. Montana Power Company et al., and to overrule the demurrers. The suit in question is for damages for alleged interference with plaintiff's use of irrigation water from the Madison River in 1935, 1936 and 1937. There are nine causes of action, which are grouped as to years. The first three relate to 1935, the next three to 1936, and the last three to 1937. Thus there are three causes of action with reference to each of the three years.

The first group, comprising causes numbered 1, 4 and 7, is based upon the allegation that the defendants had by their dams wrongfully impounded the entire natural flow so that no appreciable amount flowed in the river at plaintiff's point of diversion, and that as a result he could not have obtained his irrigation water even by means of a pump, and was thereby prevented from irrigating his crops. The demurrers to these causes of action were overruled, and no question is raised concerning them.

The third group, comprising causes numbered 3, 6 and 9, is based upon the allegation that the defendants had by their dams alternately impounded and released water of the natural flow causing such fluctuations at plaintiff's point of diversion that his wing dam and ditches could not be regulated adequately and his use of irrigation water was thereby prevented alternately by insufficient water, and by so much water that his dam and ditches were washed out. The demurrers to this group of causes were also overruled, and no question is raised relative to them.

The second group, comprising causes 2, 5 and 8, is based upon the allegations that the defendants impounded by their dams the entire natural flow of the river so that the water level at plaintiff's point of diversion was so low that he could not divert water into his ditches by his diversion dam, although the latter was suitable and efficient for the purpose and was a reasonably adequate means of diversion, and reasonably constructed and maintained to divert water from the river to plaintiff's land in spite of the fluctuations in flow incidental to the reasonable and lawful use of water by all persons lawfully entitled to use the same. The exact allegations relative to these points will be set forth below. The demurrers to these causes of action numbered 2, 5 and 8 were sustained, and the questions here are whether causes of action are stated, and whether under the circumstances a writ of supervisory control should issue requiring the order to be revoked and the demurrers overruled.

The essential difference between the first group of causes, which were held good on demurrer, and the second group, which were held bad, is that in the first it is alleged that by reason of defendants' acts there was no appreciable flow of water available for plaintiff's use even by pumping, and that in the second it is alleged that by reason of defendants' acts the flow was so reduced that plaintiff could not divert his appropriated water by his reasonably adequate and long established diversion system, and could not have diverted it without large expenditures for the construction of a new system which would divert any water, however little, flowing at that point.

The causes of action in question here include the allegations usual to this class of cases relative to plaintiff's ownership and possession of land, the irrigable nature thereof, its need for water and its ability to produce valuable crops with irrigation, the appropriation of 200 inches of water from the river in 1885 by plaintiff's predecessor to irrigate the lands by means of diversion works and ditches, the continued diversion and use of water for beneficial purposes on the land since the appropriation, the appurtenance of plaintiff's water right to the land, and the construction and maintenance by plaintiff and his predecessors of a wing dam extending out into the river to divert water into their ditch.

It was further alleged that the defendant corporation at the times mentioned maintained and controlled the Hebgen and Madison River Dams above plaintiff's point of diversion to store water; that the defendant Buck, as vice-president and general superintendent of defendant corporation, had control of the operation of the dams; that at all of these times the natural flow was sufficient to supply the rights of plaintiff and all prior appropriators for irrigation purposes, and that plaintiff's rights were prior to those of defendant corporation in point of time.

It was also alleged that during the times in question the defendants wrongfully impounded and stored the waters of the entire natural flow of the river by means of the dams, thereby so reducing the flow and the water level at plaintiff's diversion point that water could no longer be diverted into plaintiff's ditches by his diversion system.

The allegations relative to plaintiff's diversion system are: "That at all of the times herein mentioned the plaintiff maintained a wing dam constructed of brush, rocks and dirt extending into said Madison River at the head of his diversion ditch whereby the waters of said Madison River were diverted into said ditch, and conveyed thereby by gravity flow a distance of several miles to plaintiff's said lands; *** that said means of diversion *** was suitable and efficient for the diversion of water from said Madison River into plaintiff's ditches, and to his said lands, and has been and at all of the times herein mentioned was a reasonably adequate means of diversion and reasonably constructed and maintained to divert water from said river to said plaintiff's lands notwithstanding the reasonable fluctuations in the flow thereof incidental to the reasonable and lawful use of the waters thereof by all persons and corporations lawfully entitled to the use thereof, and constructed and maintained to withstand the changes in the flow of said river incidental to the reasonable and lawful use of the waters thereof by said plaintiff and all others entitled to the use thereof including the said defendant corporation; *** that if said defendants had not impounded and stored water of the natural flow of said Madison River as aforesaid, the level of the water in said river would have been sufficiently high to be diverted into plaintiff's ditches and on to his lands with the reasonably suitable and adequate means of diversion employed by said plaintiff; that said flow of said Madison River was so reduced from time to time by said defendants as hereinbefore set forth that the diversion works and ditches used by said plaintiff as hereinbefore described were rendered useless and of no value to divert water remaining in said river at the plaintiff's point of diversion into plaintiff's ditches and upon said plaintiff's lands, and plaintiff was thereby prevented from irrigating his crops at times when water was necessary for his crops; that when the flow of waters was so reduced by said defendants as aforesaid said plaintiff did not and could not have diverted water from said river without the expenditure of large sums of money, the exact amount of which is to plaintiff unknown, in the construction of a new diversion system so that any amount of water, however slight, flowing in said river which reached the plaintiff's point of diversion could have been utilized and diverted into plaintiff's ditches or by the installation of a pumping plant whereby the waters of said river could be pumped from said river into plaintiff's ditches; that to compel plaintiff to construct such diversion works would place an unreasonable burden upon the plaintiff and compel him to incur expense in an unreasonable and excessive amount to utilize the waters of said Madison River, all as the necessary consequence of the wrongful and oppressive acts of said defendants hereinbefore set forth and described."

The petition for the writ sets forth as exhibits copies of the amended complaint, the demurrer and the district court's ruling on the demurrer. It recites as the grounds of the petition that the plaintiff must incur great expense in preparing for trial, that the proof in support of the allegations of the six remaining causes of action will require the attendance of a large number of witnesses, that many of them would be the same witnesses who would testify with respect to the allegations of the three causes of action to which the demurrer was sustained, that the mistake of law complained of "will inflict a gross injustice upon your petitioner if he is compelled to proceed to trial upon said amended complaint with three causes of action stricken therefrom for the reason that the allegations of said causes of action would be sufficient to authorize a...