Toohey v. Campbell

• Decision Date: 12 March 1900
• Citation: 60 P. 396,24 Mont. 13
• Parties: TOOHEY v. CAMPBELL et al. (GRAHAM, Intervener).
• Court: Montana Supreme Court

60 P. 396

24 Mont. 13

TOOHEY v. CAMPBELL et al. (GRAHAM, Intervener).

Supreme Court of Montana

March 12, 1900

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

Action by Pat Toohey against W. S. Campbell and another and B Graham, intervener, to establish an irrigation water right. From a judgment in favor of plaintiff, defendants appeal. Modified.

Lewis Penwell and McConnell & McConnell, for appellants.

Holloway & Hoffman, for respondent.

HUNT J.

Plaintiff who is the respondent here, brought this action against defendants (appellants) to establish his right to the use of 200 inches of the waters of the East Gallatin river, flowing through what is known as the "Flannery Ditch," in Gallatin county. Defendants answered, denying plaintiff's right to the use of said waters or said ditch, and setting up their own claims to certain lands, and the use of certain waters from the said East Gallatin river, through the said Flannery ditch. B. Graham intervened, claiming a right to use certain water through said ditch, and denying plaintiff's alleged rights. There was a trial to a jury. Special findings and general verdict were returned in favor of plaintiff, by which plaintiff was declared to be entitled to the use of 200 inches of the waters of the East Gallatin river as appropriated in June, 1868, with a right to use the Flannery ditch for the conduct of said waters. The court adopted the general verdict and special findings, made certain other findings of its own, and adjudged the plaintiff, defendants and intervener to be tenants in common in the Flannery ditch and that plaintiff was entitled to the use of 200 inches of water of the East Gallatin river, to flow through the Flannery ditch. Defendants appeal from the judgment presenting, by a bill of exceptions, the question whether the court was justified by the evidence in allowing plaintiff the use of 200 inches of water from June, 1868, which put plaintiff's entire right upon an equal footing with the rights of the defendants and the intervener, or whether plaintiff should have been limited to a right to use only 50 inches as appropriated in June, 1868, and the other 150 inches as appropriated in December, 1876. We so state the question because the following material facts were testified to by plaintiff's witnesses: William Flannery said that he had known the land claimed by plaintiff, and called the "Toohey Land," since 1866, and was also familiar with the lands belonging to the defendants and the intervener; that he had lived on the Campbell land and on the Davis land, and had these lands inclosed and cultivated; that he settled on the Toohey land about January 1, 1866, and constructed two ditches for the land,--one for himself, and the other in partnership with others; that in 1889 his individual ditch had a capacity of 3,500 inches, and that this is what is known as the "Flannery Ditch," which was used in connection with the Toohey land; that out of this ditch water was first put on the Toohey land in 1869, there having been in cultivation at that time about 10 acres of the tract, and that water had been used on the land every year after 1869 until July 9, 1885, at which time there had been brought under cultivation on the Toohey land about 50 acres; that on July 9, 1885, the land was fenced with other land about it, and there were irrigating ditches upon it at that time; that up to July, 1885, the land had been irrigated by a ditch taken out of the Flannery ditch which ran around the Campbell land and across the south end of the Toohey land; that on December 15, 1876, he made a timber-culture entry on the Toohey land, and that this timber-culture entry was kept in force until the said 9th of July, 1885, when he relinquished his rights in favor of his mother, who continued to improve the land, and eventually obtained patent for it. Witness also said that, since his mother took possession in July, 1885, she had used the water on the land through the Flannery ditch; that he had used the water of that ditch to irrigate the land, as he did the Campbell and Davis lands: that from 1885 to 1896 about 145 acres of the ground had been in cultivation, and that there was plenty of water flowing through the Flannery ditch to irrigate the Toohey land and the Davis and Campbell lands, except in occasional years, when the water was short. The cross-examination brought out that witness simply had an ordinary squatter's claim to the land when he took out the ditch; that he was not claiming it under the homestead or pre-emption laws, and that he pre-empted a part of this land afterwards, and made a homestead upon...