114 P. 110 | Mont. | 1911
delivered the opinion of the court.
On November 22, 1910, the plaintiff, a taxpayer, and the defendant city, submitted to the district court of Lewis and Clark
The proceedings of the city are attacked upon the ground that Ordinance 785 does not submit the question to the voters in the
The question for determination here is: Has the city council ascertained that the Beaver creek supply is available, and that the cost of acquiring and installing it can be com passed by the amount of indebtedness sought to be incurred? It appears that the city has already acquired by purchase certain water rights in Beaver creek. These rights are: (1) Three agricultural appropriations: (a) The Reynolds right, of 67 miner’s inches, appropriated March 31, 1865; (b) the Beatty et al. right, of 194 inches, appropriated April 1, 1865; and (e) the Davies right, of 67 miner’s inches, appropriated October 1, 1865. (2) The French Bar placer mining right of 1,000, appropriated October 1, 1865. The rights of the several appropriators to the use of the waters of Beaver creek have heretofore been fully adjudicated, first in Beatty v. Murray Placer Mining Company, and again in Spokane Ranch & Water Company v. Beatty et al. The
It is agreed that the waters of Beaver creek are pure and wholesome, and that the minimum supply is never less than 165 inches, and that this quantity is ample to meet the needs of the city and its inhabitants. It is further agreed that the city first determined that the cost of procuring this water supply for the city, including all the expense of right of way and installation of a water system, will not exceed the amount sought to be raised by this issue of bonds. There is left, then, but the single question: Does it appear that the city has a supply of water which is available 1 And this is to be answered by the reply to another question, viz.: Does it appear that the city of Helena can lawfully divert from the Beaver creek watershed sufficient water to supply its needs?
In the Spokane Ranch & Water Co. Case above the court decreed that the Reynolds right of 67 inches is the first in time and prior to all other rights; that the Beatty et al. right, of 194 inches, is the second; that the Davies right, of 67 inches, is the third; and the French Bar right, of 1,000 inches, is the fourth. With reference to the French Bar right, the court found: “(10) That on the first day of October, 1865, the said city of Helena, and its predecessors in interest, diverted 1,000 inches, being 25 cubic feet per second of the waters of Beaver creek, and appropriated the same for useful and beneficial purposes, through its French Bar ditch, extending from Beaver creek, in Broadwater county (then Jefferson county), state of Montana, to French Bar on the Missouri river, in Lewis and Clark county, said state, beyond the watershed of said Beaver creek, and appropriated the same for useful and beneficial purposes (being the same water right decreed, as of said date, to the Murray
Assuming, then, as the agreed statement of facts admits, that at certain seasons of every year the quantity of water in Beaver creek does not exceed 165 miner’s inches, may the city still divert that water from the Beaver creek watershed? The decree in
Carlson is not one of the subsequent appropriators, and he cannot make the complaint that the diversion by the city may
So far as this record discloses, the city council, before calling the election, first ascertained that the particular supply has been acquired and that the cost of installment is within the compass of the sum which the city can lawfully expend for that purpose. Therefore, there cannot be any possible objection to allowing the voters to speak as to the propriety of securing the particular supply. (Carlson v. City of Helena, above.)
It is contended that Ordinance 785 is misleading, in that it
The judgment is affirmed.
Affirmed.