Toombs v. Hornbuckle

• Decision Date: 31 January 1871
• Citation: 1 Mont. 286
• Parties: TOOMBS, respondent, v. HORNBUCKLE et al., appellants.
• Court: Montana Supreme Court

1 Mont. 286

TOOMBS, respondent,

v.HORNBUCKLE et al., appellants.

Supreme Court of the Territory of Montana.

January Term, 1871.

Appeal from the Third District, Lewis and Clarke County.

THE facts are contained in the opinion. The action was tried in April, 1870, in the district court, before SYMES, J.

CHUMASERO & CHADWICK, for appellants.

The decree of the court below was not justified by the evidence or special findings of the jury. The testimony shows that the water flowing from the springs was diminished in quantity almost one-third, and lacked only ten inches of furnishing respondent with all the water he was entitled to by the findings of the jury. The use of this water by miners materially diminished its quantity below the springs. The findings are in accord with the facts, and the rights of the parties should be determined by them. These findings show that appellants had not diverted from respondent's ditch any water to which respondent was entitled, and that there flowed at all times from the springs, the water that respondent was entitled to, if the miners did not obstruct it. When the miners obstructed the water from the springs, sixty inches reached the respondent's ditch. The miners so obstructed this water during June and July, 1869.

The decree makes appellants liable for the acts of those miners, and compels them to supply respondent with water to which respondent has no claim. Appellants are obliged to leave in the creek, at the head of respondent's ditch, seventy inches of water, regardless of any depredations that may be committed by strangers below their point of appropriation. This decree overrides every principle of equity. No man should be made responsible for the acts of another, committed without his knowledge or assent. The injunction wrests from the appellant his property, to compensate an injury that he did not cause. That part of the decree, which interferes with the user by appellants of all the waters at the head of their ditch, in Magpie creek, should be set aside, and the injunction should be dissolved.

E. W. & J. K. TOOLE, for respondent.

Respondent was first in right as to seventy inches of water. The decree gives him this amount at the head of his ditch. Respondent cannot suffer from natural causes affecting the supply of water. The finding, respecting the springs, is immaterial. The general verdict is conclusive as to the estoppel claimed by appellants.

WARREN, C. J.

The plaintiff, in this case, alleges right of possession and user of about two hundred and fifty inches of the waters of Magpie creek, by virtue of his appropriation thereof, made in 1865, by means of a ditch there constructed, for the purpose of irrigation, and alleges a continuous wrongful diversion of such water by defendants, prior to the commencement of this action, and threats by defendants to continue such diversion. He prays judgment for damages; that title be established and decreed in him to the extent of his prior appropriation, and that defendants and those in privity with them, be perpetually enjoined from diverting such waters.

The answer in substance denies plaintiff's appropriation, and also denies that defendants “wrongfully or unlawfully” diverted said water, and sets up an appropriation of the waters of Magpie creek, made by defendants for mining purposes, in May, 1866, and subsequently, in October, 1866, by means of ditches then constructed, and that said waters were then unappropriated, and that de...