Thorp v. Woolman
| Decision Date | 31 August 1870 |
| Citation | 1 Mont. 168 |
| Parties | THORP, respondent, v. WOOLMAN, appellant. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the Third District, Lewis and Clarke County.
IN this action, Thorp and Woolman filed their agreed statement of facts in the district court for Lewis and Clarke county, on March 14, 1870. The attorneys of the parties also filed a stipulation “that the above agreed statement is made with reference to the settled customs and usages of Montana Territory, of which we desire that the court shall take judicial notice.” On June 10, 1870, the court, SYMES, J., signed a decree in favor of Thorp, and Woolman appealed.
Section 4 of the act approved January 12, 1865, which is referred to by counsel and the court, is as follows:
SEC. 4. That in case the volume of water in said stream or river shall not be sufficient to supply the continual wants of the entire country through which it passes, then the nearest justice of the peace shall appoint three commissioners, as hereinafter provided, whose duty it shall be to apportion, in a just and equitable proportion, a certain amount of said water, upon certain alternate weekly days, to different localities, as they may in their judgment think best for the interest of all parties concerned, and with a due regard to the legal rights of all.”
The opinion contains the other facts.
SHOBER & LOWRY, for appellant.
Appellant relies upon the statute of the Territory. Acts 1865, 367, 368, 369.
WOOLFOLK & TOOLE, for respondent.
The courts of the Territory, like those of California, hold that rights to water are determined by priority of appropriation. Has the statute referred to by appellant changed this rule? In controversies between minors and ranchmen, this doctrine of priority prevails and should be of general application. The appellant's interpretation of this statute makes prior appropriation of no avail. The whole of the statute must be construed together, and custom and usage must be considered to ascertain the intention of the legislature. Sedgw. Stat. Law, 231 to 239; Jackson v. Gumaer, 2 Cow. 567;M'Keen v. Delancy, 5 Cr. 22; Cullerton v. Mead, 22 Cal. 95.
Sections 1 and 4 must be construed together. Can all the ranchmen upon a stream insist that the water thereof shall be divided among all of them, without regard to the time of their settlement? The water granted by section 1 of the statute would be taken by others, and the first locator would not have water to the “full extent of the soil.” There is nothing in section 4 which provides that priority shall not prevail, or that the water shall be equally divided. The commissioners are to apportion the water in a “just and equitable proportion,” and with a due regard to “legal rights.” The object of this statute was to save litigation with regard to water rights, and the commissioners are made a new tribunal to settle controversies. The organic act vests judicial power in certain officers. This statute vests it in commissioners. Being clearly in violation of the organic act, it is void. Organic Act, § 9; People v. Collins, 19 Wend. 56;French v. Teschemaker, 24 Cal. 518;Burson v. Cowles, 25 Id. 535;Reed v. Omnibus R. R. Co., 33 Id. 212.
The court should act as a legislator if the statute is ambiguous. Sedgw. Statutory Law, 294.
If a statute, which confers a new right and remedy, is void, the right and remedy fall with the statute. State v. Poulterer, 16 Cal. 515, and cases cited; Almy v. Harris, 5 Johns 175.
This cause was presented to the court below on an agreed statement of facts. It appears, from this, that the respondent and appellant each owned a ranch on Prickly Pear creek. That of the appellant's was higher up the creek than that of respondent's. The respondent first located his ranch, and, at the same time, claimed three hundred inches of water in this creek for the purposes of irrigating his land. In 1869, owing to a drouth, this was all the water there was in this creek, and this much was necessary to irrigate the land of respondent. The appellant then applied to the nearest magistrate, in accordance with the provisions of “An act to protect and regulate the irrigation of land in Montana Territory,” approved January, 1865, for the appointment of three commissioners to apportion what water there was in the creek between him and respondent. This commission met, and awarded one-half of the water to appellant, leaving the respondent the other half.
The respondent asks a decree against the appellant for three hundred inches of water. The case may be said to be an action to quiet title, presented to the court upon these facts. The court below gave judgment to the respondent for three hundred inches of water. From this judgment the...
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Ormsby County v. Kearney
...the courts for their adjudication as to their respective rights." Kinney on Water Rights (2d Ed.) vol. 3, p. 2901. In the case of Thorp v. Woolman, 1 Mont. 168, the Court of Montana, in passing upon the constitutionality of an act providing for the appointment of three commissioners empower......
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...or ditches over the intervening property. Bannack's Statutes, p. 367. Certain sections of that act were declared to be invalid (Thorp v. Woolman, 1 Mont. 168), the remaining portions were replaced by an act of the Sixth Legislative Assembly (1870) which in effect re-enacted the first provis......