Zosel v. Kohrs
| Decision Date | 23 March 1925 |
| Docket Number | 5639. |
| Citation | 234 P. 1089,72 Mont. 564 |
| Parties | ZOSEL v. KOHRS et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Powell County; Ben B. Law, Judge.
Action by Louise Zosel against Conrad Kohrs and others. From a judgment of dismissal, plaintiff appeals. Affirmed.
Edward Horsky, of Helena, for appellant.
Keeley & Keeley, Scharnikow & Paul and S. P. Wilson, all of Deer Lodge, for respondents.
This is an appeal from a judgment, dismissing plaintiff's action upon the ground that her complaint does not state facts sufficient to constitute a cause of action, and whether it does is the sole question presented. In her complaint she alleges, in substance, that she is and, ever since prior to March 2, 1906, has been the owner of described land in Powell county, situated near the confluence of Cottonwood and Baggs creeks, together with two certain water rights decreed to her husband, William Zosel, by a judgment bearing date March 2 1906, and the ditches appurtenant to the lands; that approximately 125 acres of the land are arid, but valuable for the production of hay, grain, grass, vegetables, and fruit, which can be grown thereon with the aid of artificial irrigation, but not otherwise; that at all times since March 2, 1906, she has been raising such crops on the land, and during all of that time has used the waters from Cottonwood and Baggs creeks to irrigate the same and for domestic purposes; that without the use and enjoyment of the waters of said creeks plaintiff will be deprived of any water for domestic purposes.
She next alleges that on March 2, 1906, in an action in the district court of Powell county wherein Conrad Kohrs and others were plaintiffs, and F. H. Albee and others including William Zosel were defendants, a judgment was duly made given, and entered (the judgment being set forth at length) which has never been appealed from, modified, reversed, or set aside; that Baggs creek is a tributary to Cottonwood creek for a short period in the spring of the year; that both of the creeks flow in a westerly and northwesterly direction and that the confluence of Baggs creek with Cottonwood creek is about 1/8 of a mile below her land; that these lands are situated so that the same can and have been sufficiently irrigated by waters taken from each of said creeks; that by the judgment her husband, William Zosel, was adjudged and decreed the use, enjoyment, and possession of the waters of Cottonwood creek and its tributaries for all domestic and beneficial purposes in the following amounts, namely, 100 inches of the waters of Baggs creek, as of date March 1, 1883, and 75 inches of Cottonwood creek, as of date March 1, 1884, and that she is the successor in interest of William Zosel in said rights; that the defendants and their predecessors in interest were adjudged and decreed to have the use and enjoyment of 1,926 inches of the waters of Cottonwood creek and its tributaries as of dates prior to the 1st day of March, 1883, and 400 inches as of dates subsequent to the 1st day of March, 1884; that the entire amount of water decreed was 2,401 inches, and the amount flowing in the creeks during the flood or high-water period in the spring and early summer, namely, during the months of March, April, May, and the 1st of June of each year, has been in excess of the amounts actually used by said plaintiff and defendants; that during these months of each year a large amount of water flows past the ditches of the parties and goes to waste, and that during the remaining months of the irrigating season of each year, namely; the latter part of June, July, August, September, and October, the water flowing in the creeks has been less than the 1,926 inches awarded to defendants and their predecessors in interest as of dates prior to the 1st day of March, 1883 (that being the earliest water right decreed to plaintiff); and unless plaintiff had diverted and used some of the waters decreed to defendants as of dates prior to her own rights, during all of the years since long prior to 1906, except during the high-water period of each year, she would have been without water for irrigating her said lands and for domestic uses.
She further avers that ever since the 2d day of March, 1906, she has kept and maintained her ditches which tap Cottonwood and Baggs creeks, "being the same William Zosel ditches mentioned in the judgment of March 2, 1906," and that the same have ever been of sufficient size and capacity to convey 100 inches of water from Baggs creek and 75 inches from Cottonwood; and that during the dry summer season of each and every year the waters of Baggs creek decrease in volume "until during the time of such dry season there is less than 100 inches of water flowing in said creek at the point where plaintiff's said ditch taps said creek."
She then says that commencing with the 3d day of June, 1906, and at all times since and during each and every year commencing with the spring of each year as soon as weather conditions have permitted, she has "diverted from said creeks, through her said ditches and to and upon her said lands, and openly, notoriously, and adversely, used upon her said land by means of said ditches all the waters from said creeks which said ditches would and do convey, namely, 100 inches of the water from said Baggs creek, and 75 inches from said Cottonwood creek, and continued to so divert and convey as aforesaid said amounts of water through said ditches during the entire irrigating season of each year, except at such times during the dry summer season when the said volume of water in said Baggs creek is less than 100 inches"; that she begins to so use the waters during the latter part of March or the first part of April of each year, and continues to use them continuously and without interruption until the end of the irrigating season in the month of September or October of each and every year, and after that she employs the water for household and domestic purposes "and has so diverted and so used said waters at all times during each and every year since said 3d day of June, 1906"; that the ditch through which she diverts water from Baggs creek taps that creek at a distance of about 1 1/4 miles above the confluence of Baggs creek and Cottonwood creek, and none of the ditches belonging to the defendants or either of them tap Baggs creek between the head of plaintiff's ditch and the confluence of said creeks, except the ditches of the defendant Pierce; that at certain times during the dry season of each year the water flowing in Baggs creek at the point where plaintiff's ditch taps the creek recedes to 50 inches or less at plaintiff's point of diversion, and all of that water, if allowed to flow uninterrupted, sinks and disappears before it reaches Cottonwood creek, and is forever lost to the defendants and each of them.
Plaintiff then avers that her use of the waters aforesaid is, and at all times since said 3d day of June, 1906, has been, open, notorious, peaceable, continuous, exclusive, and adverse to the claim of said defendants and each of them, "and that on or about the ------ day of July, 1906, plaintiff gave notice to and during all of said time subsequent to said last-mentioned date, defendants and each and all of them had actual knowledge of plaintiff's use of said waters, and that said use by plaintiff has at all of said times been under claim of right, without interruption or interference from any of said defendants or any one else, save and except during the year 1919 as hereinafter set forth."
She then relates that in June, 1919, the duly appointed qualified, and acting water commissioner for that year, in the action wherein said judgment was rendered, closed the ditches of the plaintiff, and that her husband, William Zosel, opened the ditches; that thereupon Zosel was charged with contempt by the water commissioner and in the trial following William Zosel was adjudged guilty of contempt and was sentenced to pay a fine of $50, which was affirmed on appeal, and that Zosel paid the fine. She alleges that the defendants threaten to and will prevent her from using...
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