State ex rel. Mungas v. District Court of Third Judicial Dist. in and for Granite County

• Citation: 59 P.2d 71,102 Mont. 533
• Decision Date: 26 June 1936
• Docket Number: 7579.
• Parties: STATE ex rel. MUNGAS et al. v. DISTRICT COURT OF THIRD JUDICIAL DIST. IN AND FOR GRANITE COUNTY et al.
• Court: United States State Supreme Court of Montana

59 P.2d 71

102 Mont. 533

STATE ex rel. MUNGAS et al. v. DISTRICT COURT OF THIRD JUDICIAL DIST. IN AND FOR GRANITE COUNTY et al.

No. 7579.

Supreme Court of Montana

June 26, 1936

Application for a writ of supervisory control by the State, on the relation of George M. Mungas and others, against the District Court of the Third Judicial District in and for Granite County and Hon. George W. Padbury, Jr., judge presiding, to review a judgment finding relators guilty of contempt of a judgment and decree adjudicating water rights and enjoining interference with those water rights.

Proceeding dismissed.

W. E Keeley, of Deer Lodge, and J. J. McDonald, of Philipsburg for respondents.

ANDERSON Justice.

This was an application for a writ of supervisory control to review a judgment of the district court of Granite county finding the relators guilty of contempt of a judgment and decree of the same court adjudicating certain water rights and enjoining interference with those rights.

The judgment in the water right suit was before this court on appeal. Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 17 P.2d 1074, 1078, 89 A.L.R. 200. The relators are the owners of lands in Sec. 12, T. 5 N., R. 15 W.--some 250 acres of which are irrigated. The Rock Creek Ditch & Flume Company is a corporation of which the relators are the majority stockholders. It diverts water from the east fork of Rock creek, and delivers it to the relators for the irrigation of their lands in section 12. The canal owned by the company was constructed at great expense. The defendants Miller, in the original water right suit, were adjudged to have an appropriation out of Wyman creek. A dry draw passes through the lands of the relators in section 12, which is according to all the testimony, a tributory of Wyman creek. Any water which may chance to run in this draw flows into Wyman creek above the point or points of diversion of the Miller rights. One Hickey, also a stockholder in the ditch company, owns the land in section 7 which adjoins section 12. The watershed of the east fork of Rock creek and that of Wyman creek are separate and distinct from each other. Since the entry of the decree in the water right suit, the relators have verbally leased from Hickey lands in section 7, and irrigate thereon a tract of alfalfa, approximately 15 acres in area, and such additional pasture land as the water is available to supply. Their method of irrigating the various lands is that the water diverted from the east fork of Rock creek is delivered to them from the ditch company at approximately the corner of the section; by means of laterals they irrigate these lands in section 12. As a result of the irrigation, water collects in what we have referred to as a dry draw, which, if permitted, flows into Wyman creek and is available for use under the Miller rights. The relators have a number of ditches leading from the draw, some of which are used to again spread water over certain portions of their land in section 12. The owners of the Miller rights have no objection to this procedure. However, down near the boundary line of the relators' land in section 12, they maintain two dams from which they make diversion and carry the water thus obtained through a ditch and utilize the same for irrigation of the alfalfa and pasture lands in section 7, mentioned supra. The point at which these diversions are made, and where the dams are located, is so situated that it is impossible for the relators to utilize the water which is collected there for irrigation on their lands in section 12. There is some slight testimony in the record to the effect that in this so-called dry draw two springs are found which contribute to the flow in the draw; however, the evidence is almost overwhelming to the effect that the flow of these springs is wholly insufficient to cause water to flow in the draw for any considerable distance. The waters which collect in the draw are not supplied by any direct ditch but accumulate therein solely as the result of the irrigation.

The stockholders were not named as parties to the original suit, but the injunctive portion of the decree runs against the stockholders without naming them. The decree adjudicates the water of Wyman creek and its tributaries; however, this draw is not named or mentioned, aside from the general provisions with reference to the tributaries of the creek. The relators claim no appropriation of the waters of Wyman creek as such. They contend that upon the facts they are entitled to have the judgment finding them guilty of contempt annulled, their contentions being (1) that they were not parties nor successors in interest of parties to the ditch company which was a party to the decree, although they were then stockholders of the company, and there has been no change in their position since the entry of the decree; (2) that they brought the water involved from the east fork of Rock creek, an independent source of supply, and which would not naturally have been available as a part of the waters of Wyman creek for the irrigation of the Miller land; and (3) that such water having been brought to the land of the relators, used by them thereon and recaptured after the first use without the same having passed across the boundaries of their land.

Admittedly, the relators were not parties to the proceeding in which the decree was entered. The corporation which diverts the water and delivers it to the relators for their use, as we understand the record, irrigates no land of its own and owns no land which it has attempted to irrigate. Generally, one who is not a party to a decree, or a successor in interest of some party to a decree to a water right suit, and not connected with the litigation or with the parties thereto, may not be punished for contempt of the provisions of the decree. State ex rel. Reeder v. District Court, 100 Mont. 376, 47 P.2d 653; State ex rel. Pew v. District Court, 34 Mont. 233, 85 P. 525. A stockholder claiming a right through the corporation is undoubtedly bound by any judgment for or against the corporation with respect to any other person privy to or legally affected by such judgment. 1 Freeman on Judgments (5th Ed.) 1104; Croke v. Farmers' Highline Canal & Reservoir Co., 71 Colo. 514, 208 P. 466.

The ditch company was a party to the decree. The relators' right to use the water delivered to them by the ditch company is the result of contractual relations between the relators and the ditch company. Their right to use it is as successor in interest to the ditch company. Furthermore, the relators were intimately connected with the litigation in question. Much of the testimony offered on behalf of the ditch company was produced by the...