98 P. 881 | Mont. | 1909
delivered the opinion of the court.
This action was commenced by the plaintiff against the defendants to have determined the relative rights of the parties to the use of the waters of Towhead creek, in Lewis and Clark county. The plaintiff is the owner of certain real estate known as the “Hilger ranch.” She claims the right to the use of all the waters of the stream. In her complaint she asserts the right to this use by virtue of the appropriation of some of the waters which flow out of the canyon in which the stream rises, disappear in the gravel, and by means of a well-defined subterranean channel are conducted onto her land, where they reappear in the form of a spring; and she asserts her right to the remaining portion of the water by reason of the fact that such water percolates through the loose gravel and sand into and under the soil of her premises, thereby affecting subirrigation. The defendants deny the plaintiff’s claim, and assert their rights to the use of certain quantities of the water by appropriation. The case was tried to the court without a jury. The court made findings of fact and conclusions of law, and entered a decree by which awards were made to the parties as follows: To the
Two questions only are presented for our determination: (1) Is the evidence sufficient to justify the finding of the trial court that the waters of Towhead creek, to the extent of 100 inches, after disappearing in the sand and gravel some distance above plaintiff’s ranch, follow a well-defined subterranean channel to the ranch and reappear as a spring; and (2) is the evidence sufficient to justify the finding that on May 1, 1873, the plaintiff and her predecessors in interest appropriated the 100 inches of water thus appearing at the spring? We may dismiss the first of these questions with the observation that in our opinion the evidence is amply sufficient to warrant the finding of the trial court. The second question presented requires further consideration.
Nicholas Hilger, the husband of plaintiff, was the principal witness in her behalf. Her sons, Joseph D. and Andy Hilger, and one Ewing, also gave testimony in support of her contention. It appears that John H. Ming owned the Hilger ranch for three or four years prior to 1873, when he sold it to Nicholas Hilger, who owned it continuously until 1904, when by mesne conveyances it came into the possession of the plaintiff. Nicholas Hilger lived on the premises practically all of the time he owned them. He appears to have been thoroughly acquainted with the conditions there, and, in view of these facts, his testimony appears all the more remarkable. Aside from the effects upon the land of the percolating waters, his testimony touching the use of the waters of Towhead creek on the Hilger ranch is summarized as follows: He purchased the property in 1873,
The witness Ewing testified that he worked on the Hilger ranch for Ming in 1872 and 1873; and with respect to the Ming
Joseph D. Hilger testified: ”1 don’t remember exactly when the water from the spring was first used for irrigation. That goes farther back than I can remember. I think it was about ’82. I think the short ditch for the purpose of taking the water from the spring for irrigating was constructed in ’82. * * * That ditch was about 500 or 600 feet in length, I guess. I never measured it. I helped to construct part of the ditch. That ditch conducted the water onto a piece of land below the spring, on a garden spot. * * * Until the construction of this ditch, there was no use made of the water of the spring for irrigating down there. There may have been before. * * * There were no signs of any ditches there that had been used for conveying water from the spring when this ditch was constructed — none that I knew of or saw. * * * There are some small ditches down there traversing this Hilger ranch. I don’t remember when these were dug, but I think it was about ’86. One of them was dug for a drain. * * * I remember the water of the spring being used to operate a waterwheel. That water-wheel was constructed about ’83 or ’84. I am not positive — ’82 maybe. I am not sure about that. * * * The water-wheel was operated by water from the spring several years — four, five, or six years. The water from the well that was pumped by the water-wheel was used for running around the piece of ground where the trees were planted. It was to irrigate the trees. * * # I don’t remember when this well that I spoke about was filled up. It was some time after we quit using the water-wheel for power. ¥e used the wheel in ’84, ’85, ’86, and ’87; so it must have been about ’90.”
In awarding to the plaintiff the prior right to the use of 109 inches of the water the court specifically based its decree upon finding No. 10, as follows: “That ever since 1873 the plaintiff and her predecessors in interest have used the water of said spring to the amount of one hundred (100) inches for power purposes, and also through ditches constructed from said spring, and said water to the amount of one hundred (100) inches has-been used to irrigate a portion of the lands now owned by plaintiff, and through the use of said water, in the manner aforesaid and to the extent of one hundred (100) inches, the plaintiff and her predecessors in interest appropriated of the waters of said Towhead creek the quantity named, and, as against the defendants, is entitled to the beneficial use of one hundred (100) inches of said water.” Apparently, the court was unable to find that the waters from the spring had ever been used for domestic or other useful purposes, except for power and irrigation purposes, and we have simply searched the record in vain.
Reversed and remanded.