120 P. 243 | Mont. | 1912
delivered the opinion of the court.
This action was brought to have determined the relative rights of the parties to the use of the waters of Powell creek, in Powell county. The defendant Hare has appealed from the judgment and from an order refusing him a new trial; but the appeals attack the findings of the trial court and the decree only so far as they determine the question of priority as between the right of Hare and the right of defendant Eyre.
The trial court awarded to each of these parties a right to the use of forty inches of water. There is not any question of forfeiture or abandonment involved, and all the evidence in the record, except that reflecting upon the original appropriations of Eyre and Hare, may be discarded. Neither of these parties knew anything of the origin of his claim. Each had coiné into the neighborhood and acquired his right at a comparatively recent date. The original appropriator of the Eyre right, and the predecessor of Eyre in the lands to which that right is appurtenant, was John Creighton; while the original appropriator of the Hare right, and Hare’s predecessor in interest, was John Williams. And Creighton and Williams were the only witnesses who testified concerning these respective appropriations. While there are slight inconsistencies in the testimony of these men, due no doubt to the lapse of time, there is not any conflict whatever The effect to be given to their testimony was the only question which confronted the trial court and is the only one for our determination. Stripped of all useless verbiage, the evidence given by these witnesses follows:
John Creighton testified that he settled on the Eyre land in the fall of 1881, and constructed the Eyre ditch m the spring of 1882, and by means of it conveyed water from Powell creek upon his lands and irrigated crops of grain and vegetables during the season of 1882; that at the time he started constructing the Eyre ditch, John Williams had the Hare ditch already constructed and was taking water through it; that he saw water running through
John Williams testified that he settled on the Hare land in 1879; that in the spring of 1882 he completed a ditch which had been commenced theretofore by a man by the name of Evans, and which incomplete ditch Williams had purchased in December, 1881, from Eváns; that at the time he completed this ditch (the Hare ditch) it was the only one tapping Powell creek; that he was using water to irrigate his crops in the spring of 1882, before Creighton started to construct the Eyre ditch; that when water became scarce he would turn the water Creighton was using back into the creek and down to the head of his ditch; and that Creighton did not object to his doing so.
Creighton testified that he could not state the month of 1882 when he first used water through the Eyre ditch. He was then asked by counsel for Eyre: “Do you remember whether it would be as early as the month of May or not?” To which he answered: “Well, I can safely say it was; it would be in May.” When Williams was asked to state the time when he first used water through the Hare ditch, he said: “Well, it must have been something near this time, I guess. ’ ’ He was referring to the time of trial, which started on May 25.
Upon this evidence the court, by its findings 4 and 5, fixed the date of the respective appropriations as follows: Eyre, in June, 1882; and Hare, in July, 1882. The evidence discloses that the Eyre ditch was short and required but little time to
Since the evidence is all before us, and there is not any substantial conflict, a new trial is unnecessary; but it is the duty of
The order refusing a new trial will be affirmed. The cause is remanded to the district court, with directions to modify findings of fact 4 and 5 to conform to the suggestions made herein, and to modify the decree to meet the change thus made in the findings, and as thus modified the decree will be affirmed. The appellant will recover his costs of appeal.
Modified and affirmed.