10 Mont. 509 | Mont. | 1891
The complaint alleges, in substance, that the plaintiffs (who are the appellants) are the owners of five hundred inches of water flowing in Tin-Cup Joe Creek, and have been using the same more than eighteen years; that their predecessors in interest made an appropriation thereof in 1867 for the purpose of irrigating crops; that the defendant (who is the respondent) has been for a long time diverting this water from the stream, and depriving the plaintiffs of its use, and threatens to continue such diversion. The complaint was verified July 26, 1887. The answer consists of denials, which admit, however, that the plaintiffs are the owners of eighty inches of said water, and that the same has been used since 1867 by the plaintiffs or their predecessors in interest, and that the plaintiffs are the prior appropriators thereof. The answer denies that defendant has deprived the plaintiffs of the use of said water, or has
The action was tried by the court without a jury, and the following findings of fact were filed: Prior to the year 1879? the ditch in controversy was constructed by the plaintiffs and their predecessors in interest, and their “ right to the water was recognized by all parties from that time.”
The plaintiffs, since the year 1879, “have used the said ditch and waters of said Tin-Cup Joe Creek to the full capacity of the said ditch, when there was sufficient water to fill the same, and without any interruption from said defendant.....That at the time of the commencement of this action the plaintiffs were entitled to the use of the waters of Tin-Cup Joe Creek to an amount of not less than eighty (80) inches, nor more than one hundred and forty-four (144) inches, measured by the laws of Montana, the exact amount it is unnecessary to find herein, for the reason set out in findings hereinafter mentioned. That the plaintiffs on the day of the commencement of this action, and for some time previous thereto, and during the irrigating season of 1887, had been using the waters of said creek to the full extent of their right to said waters, as far as defendant is concerned.....That defendant, at the time of the commencement of this suit, was entitled to use of the waters of said creek the amount which flowed in the north channel of Tin-Cup Joe Creek.....That the defendant, in the year 1880, appropriated the water that was flowing in said north channel, and used every year thereafter, up to the commencement of this suit, said waters so appropriated, for the irrigation of a tract of land owned by the defendant.....That the waters of said Tin-Cup Joe Creek divide at the point .... into two channels, one called the 'south channel/ and the other the 'north channel/ and that the waters naturally flow in said channel in the following proportions, to wit, one third in the north chan
The court found, as a conclusion of law, that “ the plaintiffs are not entitled to a perpetual injunction restraining the defendant from diverting the water,” and judgment was entered for the defendant for his costs.
It appears from one bill of exceptions that “ at the trial of said cause, after the same had been argued by counsel, and before the same was submitted to the court for its decision, the said plaintiffs, among other things submitted to the court to find on as facts, asked the court to find definitely the amount of water that plaintiffs were entitled to and owned, and drew up a finding, and presented the same to the court, to find on as to the same, and which requests were as follows: .... That plaintiffs own, and have ever since prior to the year 1879 owned, the waters of said Tin-Cup Joe Creek, to the extent and amount of-inches, measured under a six-inch pressure, and in the manner provided in the laws of Montana for the measurement of water; and that the court failed to find on said question as to the definite amount of water owned by plaintiffs.”
It is evident that this was one of the material issues in the case, and we are unable to find a legal reason for its omission by the court. The rights of the parties demanded that this matter should be passed upon so that the litigation growing out
It is therefore ordered and adjudged that the judgment be reversed and the cause be remanded, with directions to the court below to find the facts requested on the testimony taken, and such further testimony as may be taken before the court, and enter judgment thereon.