Vreeland v. Edens

• Decision Date: 20 April 1907
• Parties: VREELAND v. EDENS et al.
• Court: Montana Supreme Court

89 P. 735

35 Mont. 413

VREELAND v. EDENS et al.

Supreme Court of Montana

April 20, 1907

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

Action by Frank W. Vreeland against West Edens and another. From a judgment for plaintiff and an order denying a new trial defendants appeal. Affirmed.

John A Luce, for appellants.

Hartman & Hartman, for respondent.

BRANTLY C.J.

Appeals from a judgment and an order denying a new trial. The action arose out of a controversy over the right to the use of waters of Bostwick creek, in Gallatin county.

The plaintiff and the defendants, husband and wife, own lands along the stream, arid in character and requiring artificial irrigation to make them productive. The plaintiff predicates his right upon an appropriation made on or about June 1 1882, by one Hawkins, who, it is alleged, constructed a ditch on the north side of the stream, through which he diverted 80 inches of the water for use upon lands then owned by him, and now owned by the plaintiff as his successor, by mesne conveyances. Later, it is alleged, Hawkins constructed a lateral ditch, tapping this ditch about 400 yards below its mouth, to convey a portion of the water, amounting to 40 inches, to other parts of his lands not covered by the first ditch. Continuous use of the water so appropriated it is claimed had been made by Hawkins, the mesne predecessors of plaintiff and by plaintiff, from the date of the original appropriation down to 1905, when the defendant by violence wrongfully interfered with the plaintiff's right and prevented his use of it, and diverted it away to defendants' lands, which interference and wrongful diversion continued until the bringing of this action. The prayer of the complaint is for a perpetual injunction to restrain the defendants from further interference with plaintiff's rights, and for general relief. The defendants deny generally and specifically the rights alleged by plaintiff, and allege that any rights acquired by any predecessor of the plaintiff had been abandoned before plaintiff acquired the lands now owned by him. It is then alleged, by way of affirmative defense and counterclaim, that defendants acquired their lands in 1891 by homestead entry under the laws of the United States; that at that time there were two ditches through which water was diverted from the stream, one on the north side called the "Barnett" ditch, the oldest in date and sufficient in capacity to divert all the water of the stream, the other on the south side, called the "Wisner" or "Hawkins" ditch, sufficient in capacity to convey 50 inches of water; that during the year 1893 the defendants tapped both of these ditches by laterals, using the water diverted thereby for domestic purposes and for the irrigation of their lands on both sides of the stream; that the amount of water so diverted is 25 inches; that the lateral tapping the Wisner or Hawkins ditch, being constructed upon the lands of the defendants, belongs exclusively to defendants; that plaintiff has no right therein, for that neither he nor any of his predecessors had constructed or obtained permission from the defendants to construct or use it, except that plaintiff's predecessor Hawkins, during certain years, had extended and used it by permission of the defendants to convey not to exceed 5 inches of water for use upon the lands now owned by plaintiff; that plaintiff has no other interest in any of the waters of the stream or ditches mentioned; and that, while defendants have interfered with plaintiff's use as alleged, they have done so only in asserting their lawful right. They further allege that for more than 10 years last past they have openly, notoriously, exclusively, adversely, and under a claim of right against all persons whomsoever used the water through their ditches to the amount of 25 inches, as aforesaid. The reply denies generally or specifically all the affirmative allegations in the answer, except that it is admitted that plaintiff never obtained permission from defendants to construct his lateral ditch from the Wisner ditch over the lands of the defendants. In this connection it is alleged that this lateral was constructed prior to the time the defendants made their homestead settlement, when their lands were a part of the public domain. The controversy therefore turns upon the right to the use of this lateral ditch and the amount of water conveyed by it. The court found all the issues in favor of the plaintiff, and entered judgment declaring him entitled to the use of 30 inches under the Hawkins appropriation. The judgment also awarded an injunction perpetually enjoining the defendants from interfering with the right thus declared. The defendants contend that the evidence is not sufficient to support the findings, and that the findings are so defective that they do not support the judgment.

Counsel for respondent insist that the appeal from the order denying the motion for a new trial should be dismissed for the reason that the notice of intention was not served in time. They have submitted a motion with their brief asking that this be done. They also insist that, since none of the matters incorporated in the statement used in support of the motion are properly in the record, they may not be considered for any purpose; and hence that there is no question for this court to consider other than whether the findings support the judgment. The motion to dismiss the appeal from the order is denied. The absence from the record of anything in support of the motion as made in the trial court is no reason why the appeal from the order denying it should be dismissed. The appeal is given by the...