122 P. 575 | Mont. | 1912
delivered the opinion of the court.
This suit was brought to have determined the relative rights of the parties to the use of the waters of Big Timber creek and its tributaries. The trial court found that 1,430 miner’s inches of the waters of the North fork of Big Timber creek had been appropriated through the Big Timber creek canal and this quantity it ordered distributed: 430 inches to Asbury et al., and 1,000 inches to the Glass-Lindsay Land Company. From the decree and an order denying a new trial, the Glass-Lindsay Land Company appealed.
In 1892, Lee, Hall, and Hatch filed notice of appropriation of 5,000 inches of water of Big Timber creek and commenced the construction of a distributing system. This work was continued in 1893. In 1894 Hatch succeeded to the interests of Hall and Lee, and continued the work to such an extent that small quantities of water were used during 1894 through the main canal. The appropriation made by Lee, Hall, and Hatch was for the purpose of irrigating lands upon which they had some claim, as well as to sell, rent, and otherwise distribute water to other persons. In June, 1895, A. Wormser succeeded to the rights of Hatch. About this time the Holland Irrigation Canal Company was organized under the laws of the state to purchase or construct a canal system upon the North fork of Big Timber creek to irrigate lands lying in the vicinity, and to
The trial court did not make any specific findings of fact. There is one general finding in which the court made a tabulation of the appropriators, the date and amount of each person’s appropriation, and made its decree to conform thereto. In doing so it awarded to the Glass-Lindsay Company 1,000 inches, of date December 20, 1892.
The argument of appellant company is that the finding of the court and the decree so limiting its rights are not supported by the evidence. Respondents contend, among other things, that
Apparently there is not any controversy over the carrying capacity of the canal below the point where the Big Timber canal lateral leaves it, and it is apparent from the record that all of the witnesses were referring to its capacity from the head
An appropriator’s right is not to be limited by the capacity
But if such construction of the language leads to an absurdity, then it ought not to be adopted. If the witness referred to November, 1910, then the trial court refused to believe him, for it will not be presumed that the court awarded, water rights 'aggregating 1,430 inches through a canal that will carry but 1,200 inches. If the witness referred to November, 1910, he made his measurement after the work was done in May of that year, and the canal thus had a less carrying capacity after the work was done than it had before. Finally, if the witness referred to November, 1909, then his testimony is in substantial agreement with that of the other witnesses, Cardoza, Quinn ell, and Zuill, who measured it before the work of 1910 was done. These considerations seem conclusive that the witness must have referred to November, 1909, and, if so, then there is not any substantial conflict in the evidence, and it is apparent that the trial court must have found that the canal had a capacity of 1,240 inches before the work of 1910 was done, and a capacity of 2,200 inches after that date, if the flume mentioned above when in repair had that capacity. A different finding would not have any evidence whatever to support it. The trial court must have found that appellant’s predecessors complied with the law in posting notice at the point of diversion, in filing the notice with the county clerk and recorder, and in doing the excavation work to completion with reasonable diligence as required by statute, for it applied the rule of relation and fixed its appropriation as of the date when the notice was posted at the point of diversion, a conclusion which could not have been reached upon any other theory. The court must have found, also, that the main canal had the same carrying capacity at the time it was completed in 1895 or 1896, as it had at the time of the trial, for this would be in accordance with the evidence, which is not disputed. Again, the court must have found that the work done on the canal in 1910 was not an enlargement
From the evidence in the record it appears that about Decemr be'r 20, 1892, the predecessors of this appellant posted the required notice, claiming 5,000 inches of water; that they complied with the statute in filing the notice in commencing, prosecuting, and completing the work on the ditch; that the ditch when completed had a capacity of 2,200 inches, if the flume mentioned would carry that amount; and under section 4848, Revised Codes, the excess claimed over that amount was relinquished, and the claim itself limited to 2,200 inches, or to the capacity of the flume if less than that amount. It further appears that at the time the claim was initiated there were arid lands susceptible of irrigation from this ditch, in extent sufficient to require the entire 2,200 inches and more. It further appears that the original claimants and their successors initiated the right and prosecuted it for the purpose of supplying water to irrigate these available lands. Apparently some of these lands, at least, were public lands, and as settlers have come upon them and have made demands for the water the same has been supplied. The quantity required at the time the ditch was completed was comparatively small. But the demands have increased as the lands were settled upon or cultivated, until, during 1910, 1,150 inches were required and furnished. The question, then, arises:
It is quite well known that the law itself had its origin in the customs of miners and others in California. These customs had ripened into well-recognized rules some considerable time before there was organized local government in that country and before there was any legislation upon the subject whatever, and these customs were subsequently recognized as having the force of law, by state and national legislation and by the decisions of courts. (Woolman v. Garringer, 1 Mont. 535; Jennison v. Kirk, 98 U. S. 453, 25 L. Ed. 240; Broder v. Water Co., 101 U. S. 274, 25 L. Ed. 790.) These customs formed a part of our unwritten law, or, as it might more aptly be termed, the common law of this country as distinguished from the common law of England. (King v. Edwards, 1 Mont. 235; Jennison v. Kirk, above; Carter’s The Law, Its Origin, Growth and Function.)
In 1870 our legislature passed an Act (Laws 1869-70, p. 57) which apparently undertook to limit the right fo appropriate wafer for irrigation purposes to persons or corporations having title to, or possession of, agricultural lands. (Tucker v. Jones, 8 Mont. 225, 19 Pac. 571.) The Act recognized the rights acquired or to be acquired under the rules and customs of the early settlers; but there was not any attempt made to prescribe any other method by which such rights might be secured. By an Act of February, 1877, the right of a person or association of persons or a corporation to appropriate water to¡ sell, rent,
Our Act of 1885 is in all substantial particulars a copy of the California Act of March 21, 1872. The California Act was called in question in De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198, in a contest between De Necochea, who claimed an appropriation of water, and Curtis, who claimed as riparian owner. De, Necochea had diverted the water from a stream and actually applied it to beneficial uses after the statute of 1872 went into effect, but he did not comply with the statute by posting notice, etc., or make any attempt to do so. He had however, actually used the water before Curtis settled upon the riparian land. The only question before the court was whether a valid appropriation could be made after 1872 without complying with the statute. The conclusion of the court was that such an appropriation could be made, that the mode pre
In Murray v. Tingley, 20 Mont. 260, 50 Pac. 723) this court had before it the single question: Can a person malic'a valid appropriation of water after the statute of 1885 went into efi?eet, without complying with the statute? After citing De Necochea v. Curtis and Wells v. Mantes, and quoting the language from\ the former opinion which we reproduce above, this court said: “We think the construction of the statute by the supreme court
But we are of the opinion that by enacting the statute of 1885, and in carrying it forward into the several compilations since, our legislature had in mind a purpose in addition to those stated by the California court and by Mr. Justice Buck in Murray v. Tingley, above. That purpose was to prescribe the steps necessary to be taken to effect a complete appropriation of water. This is manifest from the statute itself. It specifies certain acts which must be done, and then concludes by saying: If you perform these acts, your right relates back to the date of posting notice. What right? The right to the use of water. (Sec. 4849.) But a valid subsisting right implies a completed appropriation, and necessarily so. It would be absurd and contrary to the very terms of the statute to say that before you have a completed appropriation you have secured a right to the use of water which relates back to some preceding date. The right of an appropriator to use water depends upon his appropriation of it. In Maeris v. Bicknell, 7 Cal. 262, 68 Am. Dec. 257, the court said: “Until such actual appropriation there can exist no complete right to the use of water, for the party may never carry out his intention.” And though Mr. Long insists that actual use is a necessary prerequisite to a completed appropriation, he nevertheless announces the following as the doctrine of relation: “The rights of an appropriator of water do not become absolute until the appropriation is completed by the actual application of the water to the use designed; but where he has pursued the work of appropriation with due diligence, and brought it to completion within a reasonable time, as against other appropriators, his right will relate back to the time of the commencement of the work.” (Sec. 51.) But our
The doctrine of relation was recognized before the statutes were enacted; but the point of time to which the right then related was the time when work was commenced upon the ditch, canal, or other means of diversion. (Woolman v. Garringer, 1 Mont. 535.) We doubt whether a party could ever invoke the doctrine of relation until his appropriation was completed; and we are led irresistibly to the conclusion that, before the
After referring to the conflicting views expressed by the courts, and as if to emphasize the views we have announced, as well as to point out the difficulties which the contrary theory will necessarily create, Mr. Wiel says: “In appropriations for future use (which are generally upheld if bona fide), also, this divergence of views will probably cause difficulty. The original theory, considering the appropriation complete on completion of the construction work and diversion (the taking of possession of the water), necessitates the enforcement of the doctrine of relation from that time; whereas, when the acquisition of the right is delayed until aeLual application, it will keep open and uncertain for years (under frequent decisions) the doubt whether an appropriation exists, as some states allow years to pass (if a reasonable time) before the application need be made; and after those years of uncertainty, will cut off the intervening rights of other claimants.” (1 Wiel on Water Bights in the Western States, sec. 396.)
We are of the opinion that the Act of 1885 intended: (1) To preserve the right which the appropriator had theretofore; and (2) to provide an additional method of making an appropriation. In other words, during the first period of our history above, there was but one method of making an appropriation,
Speaking of an appropriation after the statute of 1872 was enacted in California, Wiel, volume 1, section 364, says: “An appropriation may be made by a complete, actual diversion for a beneficial purpose, without following the statute, or else by proceeding under the statute. * * * These two are the only methods. Unless there is a right by actual diversion as below set forth, or by compliance with the statute, it cannot be spoken of as an appropriation.”
In Senior v. Anderson, 115 Cal. 496, 47 Pac. 454, the court says: “In the absence of the statutory notice, an appropriation can only be made by its actual diversion and use.”
In Lower Tule R. Ditch Co. v. Angiola Water Co., 149 Cal. 496, 86 Pac. 1081, the court, speaking through Mr. Justice Shaw, said: “In order to make a valid appropriation it was not necessary for Dunean to post and record a notice of appropriation as provided in the Civil Code (secs. 1415-1421). The method of acquiring a right to the use of water as there prescribed is not exclusive. One'may by a prior actual and completed appropriation and use, without proceeding under the Code, acquire a right to the water beneficially used, which will be superior and paramount to the title of one making a subsequent appropriation from the same stream in the manner provided by that statute.”
In each of these decisions there is a very clear recognition of two distinct methods of appropriating water since the enactment of the statute upon the subject, as we have outlined above. We are satisfied that the statutory method of making an appropriation is entirely distinct from the method which may be pursued under the rules and customs of the early settlers; and,
In support of our view, we quote, from 1 Wiel on Water Eights in the Western States, the following: “Historically, an appropriation was simply the taking possession of the stream, so that diversion was the last step in such possession and the last step in completing the appropriation.” (See. 395.) “The rules developed in the early days upon the public lands in California still prevail in California substantially as laid down in the early decisions of the court. The proposition around which these rules center is, it should be repeated, that the requisites are those furnishing an equivalent to taking possession of the flow of the water; the right having arisen as a possessory right on the public domain.” (Sec. 362.) “The law of appropriation arose as a branch of the law of possessory rights upon the public domain. It hence took on the attributes of a posses-sory system. The method of making an appropriation was deduced from the requisite, of obtaining possession of the stream. Actual use was not a prerequisite to the creation of the right and to invoking the doctrine of relation; actual diversion was enough, if with bona fide intent. * * * Actual use was rep
In proceeding under the rules and customs of the early settlers, whether before or since the enactment of the statute, the intending appropriator must take actual possession of the water; but from one who proceeds under the statute, actual use of the water cannot be exacted as a prerequisite to a completed appropriation. The statute does not require it, but, on the contrary, makes provision, compliance with which is the equivalent of actual possession. We quote again from 1 Wiel, section 362, as follows: “Having found water that can be appropriated and a proper place to appropriate it, the right to the water is not complete until the water is actually taken into one’s possession, or rather, until all work preparatory to the actual use of the water is completed, since that is the equivalent of taking possession ; it is the nearest to possession that the nature of the right makes possible.” Upon the theory thus advanced, the claimant who proceeds under the statute, and performs the acts required as set forth above, has a completed appropriation of water upon the completion of the work on his ditch, canal, or other means of diversion, even before the water is actually applied to a beneficial use. The correctness of this view, we think, is emphasized by consideration of the opposing doctrine. In Colorado it is held that actual application of the water to a beneficial use is a necessary prerequisite of a completed appropriation; and this doctrine is followed in some of the other states. Our Act of 1877, above, specifically recognized the right of an individual to appropriate water to rent or sell to another; but if the Colorado doctrine be invoked here, such individual could never make his appropriation, for, under the Colorado theory, the user and not the first individual would be the appropriator, and this is the only consistent position to assume, if actual use is a necessary step to a completion of the appropriation. But such a position
While the Act of 1870, above, sought to limit the right to appropriate water for irrigation to persons or corporations owning or in possession of agricultural lands, the provision was omitted advisedly from the Codes of 1895 and 1907, and it has
Assume that a corporation which does not own, control, or possess any land is organized for the purpose of selling or renting water to settlers to irrigate arid lands; that it proceeds under the statute to make its appropriation and fully complies with all the statutory requirements, completes its distributing system, and is ready and offers to supply water to settlers upon demand. Now, if the corporation can ever make an appropriation, it has
In the note to Nevada Ditch Co. v. Bennett (30 Or. 59, 45 Pac. 472), as reported in 60 Am. St. Rep. 777, the author reviews the history of our water right law as disclosed in the decided cases, and upon the particular question now under consideration says: “The appropriation of water for sale to others is authorized by the statutes of the states in which it is valuable for that purpose, and in many instances the chief, and even the sole, object of an appropriator is not that of any use by him in and
To deny the right of a public service corporation to make an appropriation independently of its present or future customers, and to have a definite time fixed at which its right attaches, would be to discourage the formation of such corporations and greatly retard the reclamation of arid lands in localities where the magnitude of the undertaking is too great for individual enterprise, if, indeed, it would not defeat the object and purpose of the United States in its great reclamation projects, for the United States must proceed in making appropriations of water (from the non-navigable streams of this state at least) as a corporation or individual. (Rev. Codes, sec. 4846; United States v. Burley (C. C.), 172 Fed. 615; Burley v. United States, 179 Fed. 1, 102 C. C. A. 429.)
It is clearly the public policy of this state to encourage these public service corporations in their irrigation enterprises, and the courts should be reluctant to reach a conclusion which would militate against that policy.
It is impossible to harmonize the decisions of the courts upon the subjects presented. Respectable authority can be found holding contrary to our view; but upon a consideration of our statutes, the history of the law of appropriation, and the public policy of this state, we base our conclusion that, as to a public
If our statute does not by express terms, it does by fair
The appropriated need and facilities, if equal, measure the
We find, then, from this record that, at the time of the initiation of appellant’s right in 1892, there was a useful and beneficial purpose to which the water to be appropriated could be applied; that Lee, Hall,'and Hatch were qualified to make an appropriation; that they had the bona fide intention at the time
Upon the facts stated, our conclusion is that the appropriation was actually completed upon the completion of the canal; that the right related back to the date when the notice was posted; that a valid appropriation of 2,200 inches, or such less amount as the flume would carry, was made; and that this appellant is entitled to a decree for that amount, unless the whole or a portion of the original appropriation has been lost by abandonment or nonuser for an unreasonable length of time.
It appears that the cause was determined upon an erroneous theory, and, in justice to all parties concerned, the judgment and order refusing a new trial should be reversed, and the cause remanded for a new trial as to appellant’s right as indicated above, and it is accordingly so ordered.
Reversed and remanded.