Woolman v. Garringer

• Decision Date: 31 August 1872
• Citation: 1 Mont. 535
• Parties: WOOLMAN et al., respondents, v. GARRINGER et al., appellants.
• Court: Montana Supreme Court

1 Mont. 535

WOOLMAN et al., respondents,

v.GARRINGER et al., appellants.

Supreme Court of the Territory of Montana.

August Term, 1872.

Appeal from the Third District, Lewis and Clarke County.

THE decree was entered in this action in March, 1871, by WARREN, J. At the trial, Garringer excepted to the following instructions, which were given by the court:

“The plaintiffs are not required to take notice of the intention of the defendants to carry or convey the waters of the said gulch beyond the point specified in the notice, unless such intention was indicated by such acts as would convey to a reasonable person notice of such intention, or actual notice given to them, prior to acquiring any intermediate rights.

The record notices introduced of defendants' claims to the water in controversy are not notice to plaintiffs by reason of being recorded, and it devolves on defendants to show actual notice of such record, or actual execution of the work described in it, prior to any intermediate rights plaintiffs, or their predecessors, may have acquired to the water in controversy in order to affect the plaintiffs with such notice.

If the jury believe, from the evidence, that plaintiffs, or their predecessors in interest, were not notified of the defendants' intention to carry the water in controversy out of the natural channel of the stream to some point designated, and that the defendants had done no act sufficient to indicate to a reasonable person such intention, and that the plaintiffs, or their predecessors in interest, took up said water after it was returned to McClellan gulch, and carried and conveyed the same in and upon their ranches for some useful purpose, then said defendants have no right thereafter to so change or divert said water as to deprive the plaintiffs of the use thereof.

If the jury do not believe, from the evidence, that the defendants did such acts as would convey to a reasonable person a notice of their intention to convey the waters of McClellan gulch to such point as would not reach plaintiffs' ditch, then it devolves upon said defendants to show an actual notice to said plaintiffs of their intention so to carry the same, prior to plaintiffs' appropriation.

If the jury believe, from the evidence, that the defendants conveyed the water in controversy to what is known as Union Bar or McClellan gulch, and permitted the same to flow back into said gulch without giving the plaintiffs, or their predecessors in interest, any notice of their intention to carry it elsewhere, and that their acts and works did not indicate to a reasonable person an intention to carry it elsewhere, and that said plaintiffs, or their predecessors in interest, before such notice or acts, appropriated and took possession of the waters so returned to said McClellan gulch, then defendants have no right thereafter to divert said waters from plaintiffs.

If a person appropriates water to be used at a particular point, and there uses it, and then permits it to flow back into its natural channel and go on down its accustomed course, persons below may appropriate the same so as to make it a vested right, and no subsequent change of the prior appropriation can be made so as to deprive such appropriators of the use of such water.

If the jury believe, from the evidence, that the defendants had no ditch, or survey for a ditch to the stream of water in dispute, and also that they had no notice or marks upon said stream indicating an intention to appropriate it and carry it to a point where it would not flow back into the natural channel of said stream above the point of plaintiff's appropriation, at the time plaintiffs' predecessors in interest made the appropriation of said water, then you will find for the plaintiffs in the number of inches they are entitled to, and such damages as they have proven they have sustained, not exceeding the sum of $5,000.”

The other facts appear in the opinion.

W. F. SANDERS, W. E. CULLEN and G. G. SYMES, for appellants.

The prior appropriator and owner of a ditch has the exclusive control and right of enjoyment of the water diverted therein; and he may change the place of use at pleasure without forfeiting the right. Maeris v. Bicknell, 7 Cal. 261; He can change the use of same. Davis v. Gale, 32 Cal. 26.

Appropriation and use and nonuse are the tests of right, and place and character are not. After appropriation a party is entitled to use the amount appropriated at any place where he may convey it for a useful purpose. Davis v. Gale, 32 Cal. 34;Weaver v. Eureka L. Co., 15 Id. 273;Kidd v. Laird, Id. 161.

A party cannot acquire rights to waste water as against the first user. He may make use of the water, but the first appropriator can assume possession of same at any time. Doughty v. Creary, 30 Cal. 290.

Survey of ground, planting stakes, giving notice and continually working on the ditch are possession, and when the ditch is completed the appropriation relates back to the date of commencement. Conger v. Weaver, 6 Cal. 548;Kimball v. Gearheart, 12 Id. 27.

Appellants put up notice claiming one thousand inches of water for mining purposes and recorded it with county recorder, and worked on their ditch until completion. Where did respondents acquire any right to use any portion of the one thousand inches?

The court erred in its instructions, which were to the effect that when water is appropriated for mining purposes and used at one place, it cannot be conveyed to another place if some person has been using the waste water from the mining operations. The authorities already cited show that this was error.

The court also erred in its instruction, requiring the prior appropriator to give notice to the party using waste water that he could not always use it.

The proceedings in this case are irregular. The complaint consolidates actions at law and in equity, and asks for damages and an injunction. The judgment is for damages and a perpetual injunction, and is founded on the verdict of a jury. Kleinschmidt v. Dunphy, 11 Wall. (U. S.) 610; Orchard v. Hudges, 1 Wall. (U. S.) 76; Benner v. Porter, 9 How. 242;Noonan v. Lee, 2 Black, 499. This suit was commenced on the common-law side of the court for damages, and there was no jurisdiction to grant equitable relief. The action was tried by a jury and an injunction was granted in effect by the jury. The case should be reversed for these irregularities. Lyon v. Woodman, 3d Dist. Utah; Ferm v. Holme, 21 How. (U. S.) 481.

SHOBER & LOWRY and E. W. TOOLE, for respondents.

The case was tried as requested by all parties. Instructions were given by the court at the instance of appellants as well as respondents. No objection was taken by appellants to the manner and form of the action, or the manner and form of the trial. The case was tried as authorized by the Practice Act.

The only questions presented by the record are these: Do the general verdict and special findings sustain the judgment? Did the court err in giving or refusing instructions to the jury? The judgment is correct. The instructions cover every material proposition.

The extent of the rights acquired by respondent, to which subsequently acquired rights must be subordinate, was one of fact for the jury. Nevada W. Co. v. Powell, 34 Cal. 109.

When a right has vested in the subsequent appropriator, the prior appropriator cannot extend his claim, or change the means of his appropriation to the prejudice of the second appropriator. Ang. on Water-courses, 237; Butte C. & D. Co. v. Vaughn, 11 Cal. 153;Kidd v. Laird, 15 Id. 161;Kimball v. Gearheart, 12 Id. 27;Butte T. M. Co. v. Morgan, 19 Id. 616;Hill v. Smith, 27 Id. 476;McDonald v. Askew, 29 Id. 290; Nevada W. Co. v. Powell, 34 Id. 109.

Appellants cannot raise the question of the improper blending of actions in this court for the first time. The legal rights were determined by the jury. The decree and injunction emanate from the court. Toombs v. Hornbuckle, 1 Mont. 286.

MURPHY, J.

This is an appeal from the judgment-roll, in an action for damages, for the diversion of water, and for an injunction, united in the same complaint, tried to a jury, and judgment for damages and a perpetual injunction.

The jury returned a general verdict for $250 damages, in favor of the plaintiff, and, also, findings on the special issues submitted.

Thereupon, both parties filed motions--the plaintiffs for judgment and decree, and the defendants to set aside the general verdict, and for judgment upon the special findings.

Both motions were heard together, and the defendants' overruled, and the plaintiffs' sustained, and, accordingly, judgment based upon the general verdict for $250 damages rendered, and a decree, based upon the pleadings, general verdict and special findings, for perpetual injunction entered, in favor of the plaintiffs and against the defendants.

To this action of the court, as also to the ruling out of certain testimony, and the refusal and giving certain instruction to the jury, defendants, by counsel, excepted and appealed to this court.

The first inquiry that naturally and properly arises here is, as to the regularity and legality of the proceedings in the court below, and involves the question of jurisdiction.

The proposition, that law and equity cannot be blended in the same suit or action, under our organic act, was elaborately discussed and definitely settled in the case of Gallagher et al. v. Basey et al., by this court, at its January term, 1872.

Upon the strength of that decision and the authorities upon which it is based, and the general principles of law governing, we hold:

1. That the organic act, in clothing the supreme and district courts of the Territory with both common-law and chancery jurisdiction, confers them as separate powers and distinct jurisdictions.

2. That in judicial proceedings in pursuance thereof, the well-known and recognized distinctions between law and equity must...