State ex rel. Pool v. Dist. Court of Ninth Judicial Dist. in Broadwater Cnty.

• Decision Date: 04 June 1906
• Citation: 34 Mont. 258
• Parties: STATE ex rel. POOL et al. v. DISTRICT COURT OF NINTH JUDICIAL DIST. IN BROADWATER COUNTY et al.
• Court: Montana Supreme Court

34 Mont. 258

STATE ex rel. POOL et al.

v.DISTRICT COURT OF NINTH JUDICIAL DIST. IN BROADWATER COUNTY et al.

Supreme Court of Montana.

June 4, 1906.

Application by the state on the relation of G. E. Pool and another, for writ of review to the Ninth judicial district court of the state, in and for the county of Broadwater, and the Honorable W. R. C. Stewart, judge thereof, to annul its judgment convicting relators of contempt. Application denied.

C. B. Nolan, for relators.

Wallace & Donnelly, for respondents.

BRANTLEY, C. J.

On August 26, 1890, in a suit pending in the district court of the Sixth judicial district of the state of Montana, in and for the county of Meagher, entitled “John Dunlavey et al. v. James Grubb et al.,” after a trial there was made and entered a decree adjudicating and settling the rights of the parties, plaintiff and defendant, to the use of the water flowing in Confederate creek, in said county. It was therein adjudicated that John Dunlavey, the plaintiff, was entitled to the use of 100 inches, statutory measurement, appropriated in March, 1866, and 100 inches appropriated on May 1, 1866. It was also adjudicated that Walter R. Morgan was entitled to the use of 65 inches of said water, appropriated on May 2, 1866, and 125 inches appropriated in 1872, and that A. Estes, or his successor, was entitled to 65 inches as of the date of May 2, 1866. At the time the action was brought, Meagher county was attached to the Fourth judicial district. When the territory was admitted into the Union as a state, Meagher county was attached to the Sixth judicial district. By an act of the Legislature, approved February 9, 1897 (Sess. Laws, 1897, p. 45), the county of Broadwater was created, and under the provisions of that act all that part of Meagher county wherein the water in controversy in the cause mentioned is situate was included in the county of Broadwater. That county was by the terms of the act attached to the Ninth judicial district. The decree fixes the dates of appropriation and the amounts of the various water rights, and directs that the parties plaintiff and defendant shall use them according to the relative priorities fixed therein. It contains the following provision: “And it is further ordered, adjudged, and decreed that the parties appearing herein be, and they are, and each of them is, hereby forever restrained and enjoined from interfering with the prior right of any party hereto as fixed by this decree.”

On November 13, 1905, the plaintiff, John Dunlavey, filed in the district court of the Ninth judicial district an affidavit setting forth, in substance, the following: That he is familiar with Confederate creek in Broadwater county, Mont., and the various irrigation ditches leading therefrom, as well as with that certain decree finally determining the rights in and to the water of said creek, rendered August 26, 1890, in that certain cause in the district court of the Sixth judicial district of Montana, in and for Meagher county, wherein John Dunlavey and others were plaintiffs and James Grubb and others were defendants; that by the terms of said decree the parties appearing therein, including Walter R. Morgan and A. Estes, were forever restrained and enjoined from interfering with the prior rights of any other party as fixed by said decree; that at all the times during the year 1905 Dora Pool was and since has been the successor in interest as grantee of Walter R. Morgan in the water rights and water of Confederate creek awarded by said decree, in a total of 190 inches; that J. D. Doggett was, and since that time has been, the successor in interest of A. Estes in the water of said creek, to the extent of 65 inches awarded by the decree, and that at all of said time G. E. Pool was the husband of Dora Pool and was using water from the creek as hereinafter stated, either as lessee and agent or successor in interest of Dora Pool, and that at all the times mentioned Dora Pool, G. E. Pool, and J. D. Doggett knew of said decree and the terms thereof, having sought and enjoyed the use of the water awarded thereby, and having sought and enjoyed benefits thereunder; that each of the rights of Estes and Morgan, to which the Pools and Doggett had succeeded, are subsequent to the rights of Dunlavey, as set forth in the decree mentioned; that under his said right Dunlavey is entitled to 200 inches of the water of the creek, when necessary for the irrigation of his crops, to the exclusion of the rights of the Pools and Doggett; that at all the times during August and September, 1905, and ever since, the water so decreed to affiant was and is necessary for his use for the purpose of irrigating his growing crops, for which said water was decreed as aforesaid; that at divers dates in August and September, 1905, and since, particularly on August 31 and September 4, 1905, Dora Pool, G. E. Pool, and J. D. Doggett did divert, use, and turn away from affiant's use a large quantity of the water of said creek to which affiant was then and there entitled under the decree; that they turned the same out of the natural channel at points above the heads of affiant's irrigating ditches and failed and refused to turn down said water to affiant; that they wrongfully and unlawfully withheld such water to the extent of 100 inches, measured according to said decree, from the affiant; and that, after being notified of the need of the water, they refused to turn it or any part thereof back into the channel of the creek, when requested so to do by affiant and his agent, all to the great damage and injury of affiant's crops, which were thereby deprived of the water aforesaid.

Upon the filing of this affidavit the Honorable W. R. C. Stewart, judge of the district court of the Ninth judicial district in and for the county of Broadwater, issued a citation to G. E. Pool and J. D. Doggett, citing them to appear and show cause why they should not be adjudged in contempt and punished for the violation of the injunction contained in said decree. Pool and Doggett appeared in obedience to the order of citation, and thereupon, after hearing of the evidence, the court found both guilty of contempt, and on March 9, 1906, entered its judgment adjudging that each should pay a fine of $150, or, in default thereof, should be committed to jail until the fine be satisfied. Application was thereupon made to this court for a writ of review to annul the judgment of conviction. An order was issued directing the district court and its judge to show cause why the writ should not be allowed. On the day fixed for the hearing, the said court and judge objected to the allowance of the writ, on the ground that the affidavit does not state facts sufficient to make a case authorizing this court to issue the writ.

An incidental question presented by counsel for relators is whether, since the action was determined and the injunction issued by the district court of the Sixth district, sitting in Meagher county, the district court of the Ninth district, sitting in Broadwater county, has jurisdiction to enforce the decree, the latter county at the time of the rendition of the decree being included in part in the former while attached to the Sixth district. This question seems hardly to deserve serious consideration. The act creating Broadwater county attached it to the Ninth district for judicial purposes. If this provision means anything, it means that the court of the Ninth district is clothed with jurisdiction for all purposes, so that it can do all that its predecessor might have done had no change been made. In order to meet the requirements of this changed condition, the twelfth section of the act (Sess. Laws 1897, p. 48), made it the duty of the board of commissioners...