State ex rel. Silve v. District Court of Tenth Judicial Dist. in and for Judith Basin County

• Citation: 69 P.2d 972,105 Mont. 106
• Decision Date: 30 June 1937
• Docket Number: 7704.
• Parties: STATE ex rel. SILVE v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR JUDITH BASIN COUNTY et al.
• Court: Montana Supreme Court

69 P.2d 972

105 Mont. 106

STATE ex rel. SILVE v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR JUDITH BASIN COUNTY et al.

No. 7704.

Supreme Court of Montana

June 30, 1937

Application from Tenth Judicial District Court, Judith Basin County Stewart McConochie, Judge.

Application by the State, on the relation of Neil M. Silve, for an appropriate writ (supervisory control or certiorari) directed to the District Court of the Tenth Judicial District in and for the County of Judith Basin and the Honorable Stewart McConochie, judge thereof.

Writ denied.

Freeman Thelan & Freeman, F. A. Ewald, and George E. Hurd, all of Great Falls, for relator.

Speer & Hoffman, of Great Falls, for respondents.

STEWART Justice.

Application for an appropriate writ (supervisory control or certiorari) directed to the District Court of Judith Basin County and the Honorable Stewart McConochie, as judge thereof, whereby the relator Neil M. Silve, who was adjudged guilty of contempt of that court, seeks to have the judgment annulled, vacated, and set aside.

On February 26, 1929, the district court of the above county entered a decree adjudicating certain of the water rights in Davis creek and Martin creek, a tributary thereof. The rights of relator, one of the defendants in that action, in the waters of Martin creek were determined by the decree. Being the junior appropriator, the relator, together with his successors and assigns, were perpetually enjoined and restrained from interfering with the other rights adjudicated, including the rights of Frank R. Spencer. The relator and Spencer, the latter of whom was one of the affiants upon whose affidavit the proceeding in contempt was prosecuted in the district court, were both parties to the action and now occupy the same lands they occupied at the time the decree was entered.

On April 15, 1936, Lester E. Black, sheriff of Judith Basin county, and Spencer filed an affidavit in the respondent court charging relator with contempt. They set out that Black is now, and at all times mentioned has been, the sheriff of Judith Basin county; that the decree was duly and regularly made and entered; that Spencer was a party to the suit and to the decree which is alleged to have been violated by relator; that relator is the same person whose rights were adjudicated by the decree; that the decree is still in full force and effect, and that by the decree Spencer was awarded 1,480 miner's inches of the waters of Davis creek as against Silve; that on April 26, 1930, on application, a writ of assistance was issued out of the district court ordering and directing the sheriff to put Spencer in possession of, and to maintain and keep him in possession and quiet enjoyment of, the waters of Davis creek according to the terms of the decree; that the sheriff executed the writ on April 29, 1930; that on several named dates relator opened his headgate and appropriated water "in disregard of," "in violation of," "in disobedience to," and "in defiance of" the decree and of the writ of assistance; that relator was adjudged guilty of contempt for violation of the decree in 1930, in 1931, and again in 1935, and that in 1933 a contempt proceeding was continued until further order of the court upon representation and promises made by defendant to desist from the unlawful user of water "in defiance of the said decree"; and set out the particular violation of the decree on April 13, 1936, upon which this contempt is based, as more fully appears below.

On April 15, 1936, the respondent court issued an order to show cause and a temporary restraining order. Relator then filed an answer wherein, for the purpose of showing that he was not guilty of contempt and had no intention of violating any of the orders of the court, he alleged that in November, 1935, he filed an action in the district court for correction of the decree, on the ground of error in the computation of Spencer's rights, and on the further ground of abandonment by Spencer of a large portion of his water rights; alleged that the sheriff claimed his authority to act with respect to the water rights under the writ of assistance, and denied that the sheriff has or had any right, power or authority by virtue of the writ; alleged that there was not sufficient water in Martin creek at the time of the alleged contempt to reach the Spencer lands and be put to a beneficial use, and, therefore, defendant believed that he had the right to use the water under the decree; and alleged that a water commissioner has never been appointed, although defendant undertook to have one appointed a few years ago, but was thwarted in such attempt by Spencer.

At the beginning of the trial relator objected to the introduction of any evidence upon the ground that the affidavit did not state facts sufficient to disclose that a contempt was committed by him, for the following reasons: That the proceeding was predicated upon a writ of assistance, and a writ of assistance is limited to the transfer of the possession of lands, and the use of water is not land; that the writ had once served the purpose for which it was issued and had become functus officio, and no contempt could be predicated upon a violation thereof; and that, with the allegations concerning the violation of the writ of assistance deleted, nothing remained to charge a violation of the decree.

It is not necessary to decide...