120 P. 228 | Mont. | 1911
delivered the opinion of the court.
This action was brought to have determined the rights of plaintiffs and defendants to the use of the water flowing in Reynolds creek, in Gallatin county, and to adjust the relative priorities and amounts of their respective appropriations. The stream has its source in section 16 of township 2 north, of range S east, and flows in a southwesterly direction through sections 17, 20 and 19 of this township, and sections 24 and 23 of township 2 north, of range 4 east, and empties into Dry creek which flows down from the north and east through section 23. The lands of the plaintiffs lie in sections 23 and 24 on both sides of the two streams, above and below their junction. L. J. Morgan and Roger Huffine, though served with summons, did not appear. The defendant Ecton appeared and answered, but at the opening of the trial defendant Cox was, by agreement of counsel, substituted in his stead as his successor in interest. Thus were eliminated from the case all of the defendants except Stiles, Cox, Emmett Huffine and Martin. The lands of the defendants lie on Reynolds creek above those of plaintiffs, and, except those of Stiles, above the heads of plaintiffs’ ditches. The lands of this defendant adjoin those of plaintiffs on the east. One of the ditches through which the plaintiffs assert the right to divert and use water has its head near the eastern line of section 24, upon the lands owned by Stiles. The plaintiffs claim the right to the use of all the water flowing in the stream at the heads of their several ditches, amounting to fifty inches, basing their Alaim upon an appropriation by a predecessor, which is alleged
The court tried the case without a jury. It found that the plaintiffs are entitled to the use of thirty inches, through an appropriation made by Alonzo Reynolds, the father of plaintiff Boyd, during the month of June, 1870; that defendant Cox is entitled to eighteen inches as of June, 1891; Martin to ten inches as of June, 1884; Stiles to eighteen inches as of October, 1883; and Huffine to ten inches as of June 1, 1893. A decree was entered adjudging the rights and priorities of the plaintiffs and defendants, respectively, in accordance with these findings. The defendants other than Huffine have appealed from the decree and an order denying their motion for a new trial. The only contention made is, that the findings are not justified by the evidence.
It will be observed that the Cox appropriation is found to háve been made in June, 1891, whereas it is alleged in the answer to have been made a year later. No complaint is made of this apparent discrepancy. It will therefore be passed without further notice. The evidence found in the record covers nearly 400 printed pages. It will be impossible to set it forth and analyze it, even in a general way, without extending this opinion beyond any reasonable limits. The issues presented by it are as to when the appropriation through which the plaintiffs claim
Defendants’ two main contentions are: that the award of thirty inches to the plaintiffs is too large in view of the area of land upon which it must be used, and that the evidence shows, ■without substantial contradiction, that they have another supply by means of a ditch taken from Dry creek, to the north and east, which is or can be made available for use upon the same lands. There is substantial evidence tending to show that a volume of less than thirty inches would not furnish head enough to make the use effective for any purpose, and that the nature of the ground to the north is such that it would be impracticable for plaintiffs to maintain a ditch to convey water from Dry
While, on the whole, it may be said that the trial court might have reached a different conclusion, it cannot be said that the
The judgment and order are affirmed.
'Affirmed.