State v. Quantic

• Decision Date: 16 March 1908
• Citation: 94 P. 491,37 Mont. 32
• Parties: STATE v. QUANTIC.
• Court: Montana Supreme Court

94 P. 491

37 Mont. 32

STATE v. QUANTIC.

Supreme Court of Montana

March 16, 1908

Appeal from District Court, Gallatin County; W. R. C. Stewart Judge.

Action by the state of Montana against Job B. Quantic to restrain interference with water appropriated by plaintiff. From a judgment for defendant, plaintiff appeals. Modified and affirmed.

Albert J. Galen, Atty. Gen., and E. M. Hall and W. H. Poorman, Asst Attys. Gen., for the State.

John A Luce, for respondent.

SMITH J.

The complaint in this action is as follows:

"Comes now the state of Montana, by and through its legal representative, Albert J. Galen, Attorney General of the state of Montana, and for cause of action alleges:

"(1) That by an executive order of the President of the United States there was created on February 15, 1868, the military reservation of Ft. Ellis, situated in Gallatin county state of Montana.

"(2) That said military reservation consisted of a large number of acres of land, including section 10 and section 15, of township 2 south, range 6 east.

"(3) That said land was occupied by the United States government as a military reservation until the year 1891, and in the year 1868 or 1869 the United States government appropriated all the waters of a certain creek, known as 'Spring Creek,' rising on section 36, in township 2 south, of range 6 east, in Gallatin county, Montana, and diverted said water by means of a ditch tapping said Spring creek upon its west bank at a point about a quarter of a mile east of said section 15 which ditch was 30 inches in width on the bottom by 18 inches in depth, and carried and conducted all the waters of said Spring creek, being about 60 inches, miners' measurement, or a flow of 1 1/2 cubic feet per second of time, to and upon said section 15, where the same was continuously used by the United States government from the date of its diversion for irrigating, domestic, military, and other useful and beneficial purposes upon said section 15, upon which section were located all the government building used in connection with said military reservation.

"(4) That by act of Congress of February 13, 1891 all of said military reservation was abandoned and restored to the public domain, save and except six hundred (600) acres of said section 15 and the southeast quarter of the southeast quarter of said section 10; the forty (40) acres of said section 15 that was restored to the public domain being the southeast quarter of the southeast quarter of said section.

"(5) That by said act of Congress of February 13, 1891, the said 600 acres of said section 15 and the said 40 acres of said section 10 were continued as a military reservation for the use and benefit of the militia of the state of Montana, and said act granted to the state of Montana permission to use said land as a permanent military camp ground.

"(6) That the state of Montana immediately took possession of and occupied said land pursuant to the permission given it by said act of Congress so to do, and has ever since continued in the possession of said land, and has at all times during such possession used the water diverted from said Spring creek by the United States government as hereinabove alleged upon said land for irrigation, domestic, and military purposes, except when prevented from so doing by this defendant.

"(7) That all of said land is arid land, and requires artificial irrigation in order to raise grass, trees, grains, hay, and other products; that a large part of said land has been cultivated and sown in grasses, and trees have been planted around the buildings situated on said land; and that the use of said water is necessary for the irrigation of such grass and trees, and for domestic purposes for the custodian of said reservation and for the use of the militia and their stock during the encampments of the militia held on such ground, and for other useful and beneficial purposes.

"(8) That during the summer and irrigating season of 1906 the defendant in this action, whose rights are subsequent in time and inferior in right to those of the plaintiff in the use of the waters of said Spring creek, diverted all the waters from said creek at a point above the headgate of the ditches of the plaintiff, and thereby withheld from the plaintiff the water to which it was justly entitled and actually needed and now needs for the irrigation of the grass and trees and other crops growing on said land, to the great and irreparable injury and damage of the plaintiff, and the defendant continues and threatens to continue to divert and use said waters, and will continue so to do unless restrained from so doing by the judgment and decree of this court, or by restraining order issued herein; that by reason of said wrongful acts of defendant in diverting said water as aforesaid, and his threats to so continue to divert the same, he is destroying the usefulness of the plaintiff's crops and land, and the plaintiff has no speedy or adequate remedy at law, and his damage will be irreparable.

"For a further and separate cause of action the plaintiff alleges:

"(1) That under and by virtue of the act of Congress of February 13, 1891 (26 Stat. 747), the plaintiff, the state of Montana, came into possession of the southeast quarter of the southeast quarter of section 10, and all of said section 15, except the southeast quarter of the southeast quarter of said section 15, all situated in township 2 south, of range 6 east, to be used and occupied by the state of Montana for the purposes mentioned in said act of Congress, namely, as a permanent militia camp ground.

"(2) That immediately upon the passage of said act of Congress the state of Montana, under the permission granted it by said act, took possession of said land, and has ever since continuously used and occupied the same as a permanent military camp ground, and is now using same for said purpose.

"(3) That all the buildings formerly owned and occupied by the United States government as a part of Ft. Ellis are situated upon this said section 15, and passed to the state of Montana, to be used by it in connection with said land as a permanent militia camp ground; that it was necessary, for the care and preservation of said buildings and of said land, for the state of Montana to have a custodian resident upon said ground, and to have the ground seeded to grass or other grains, and to plant trees around the buildings situated thereon, in order to make said grounds suitable for the purposes mentioned in said act of Congress; that said land is arid land, and it is necessary to irrigate the same in order to properly raise grass, trees, or grain; that the state of Montana has at all times, and does now, keep a custodian on said land for the purpose of caring for said buildings and irrigating the grass, lawns, trees, and other grasses and grains growing upon such land, and of keeping the same in condition suitable for a permanent militia camp ground; that it is necessary to have water upon said land for domestic use for said custodian and for the use of said militia and their live stock when holding encampments thereon.

"(4) That immediately after the passage of said act of Congress, and during the summer of 1891, the state of Montana appropriated all of the waters of a certain creek known as 'Spring Creek,' rising on section 36, in township 2 south, of range 6 east, in Gallatin county, Montana, and diverted said water by means of a ditch theretofore constructed by the United States government, which ditch taps said Spring creek on its west bank at a point about a quarter of a mile east of said section 15, and is 30 inches in width on the bottom by 18 inches in depth and carries and conducts all the waters of said Spring creek, being about 60 inches, miners' measurement, or a flow of 1 1/2 cubic feet per second of time, to and upon said section 15, where the same has been continuously used by the state of Montana from the date of its appropriation up to the present time for irrigating and domestic, military, and other useful and beneficial purposes upon said section 15, except when the plaintiff has been prevented therefrom by the wrongful acts of the defendant.

"(5) That during the summer and irrigating season of 1906 the defendant in this action, whose rights are subsequent in time and inferior in right to those of the plaintiff in the use of the waters of said Spring creek, diverted all the water from said creek at a point above the headgate of the ditches of the plaintiff, and thereby withheld from the plaintiff the water to which it was justly entitled and actually needed and now needs for the irrigation of the grass and trees and other crops growing on said land, to the great and irreparable injury and damage of the plaintiff, and the defendant continues and threatens to continue to so divert and use said waters, and will continue so to do unless restrained from so doing by the judgment and decree of this court, or by restraining order issued therein; that by reason of said wrongful acts of defendant in diverting said water as aforesaid, and his threats to so continue to divert the same, he is destroying the usefulness of the plaintiff's grass, trees, crops, and lands, and the plaintiff has no speedy or adequate remedy at law, and his damage will be irreparable.

"In support of the application herein for an injunction the plaintiff attaches hereto the affidavit of Andrew C. Harding, the plaintiff's custodian of said building and land.

"Wherefore to the end that the plaintiff may have complete and equitable relief, it demands: (1) That the said plaintiff be adjudged and decreed by this honorable court to be the prior appropriator and exclusive owner of all the water that...