237 P. 1103 | Mont. | 1925
The plaintiff, Emmett Huffine, has appealed from the judgment of the trial court awarding the defendant Zachary T. Miller a first right to fifteen inches, and plaintiff, a second right to ten inches, of the waters of Foster Creek in Gallatin county. It is conceded that the defendant is entitled to the first right as of the year 1883, and that plaintiff's right is second and subsequent thereto; plaintiff's only contention being that the lower court, from the evidence presented, should have awarded the defendant not to exceed nine inches instead of fifteen; that although the defendant, by his filing and by constructing a large ditch, attempted *52 to appropriate the entire stream, he has neither needed nor used to exceed nine inches for many years immediately preceding the bringing of this action; that nine inches of water will amply supply his present needs, and that the lower court therefore erred in awarding him fifteen.
Appropriators of water cannot maintain a valid claim to an[1, 2] amount of water in excess of the beneficial use to which it is applied, and when the appropriator or his successor ceases to use the water for such beneficial purpose, the right ceases. If, after an appropriation is made, conditions change, and the necessity for the beneficial use diminishes to the extent of the lessened necessity the change inures to the benefit of the subsequent appropriators having need for the water. (Conrow v.Huffine,
The question for decision, then, is: What amount of water has defendant Miller beneficially used and how much will supply his actual needs under existing conditions?
The trial court found, "that the use of said water from Foster creek upon said farm has continued since the year 1883, by the said Jacob Miller and his successors in interest, including the defendant Zachary T. Miller, but about twenty-five years ago, or more, the irrigation of grain was discontinued, and since then substantially the only use of water on said farm, and the only need of water thereon, has been the irrigation of a garden, potato patch, a small meadow, and for stock water," and that defendant will require fifteen inches of water for that purpose.
The findings will not be set aside unless there is a decided[3] preponderance in the evidence against them. And if the evidence as it appears in the record, fully considered, furnishes reasonable ground for different conclusions, the findings will not be disturbed, for the reason that the trial judge has the superior advantage of hearing the testimony and observing the appearance and demeanor of the witnesses on *53
the stand. (Kummrow v. Bank of Fergus County,
It is conceded that Foster Creek has a normal flow of about[4] eighteen inches. Plaintiff's witness Fred Brown, a civil engineer of long experience in Gallatin county, testified that plaintiff Huffine's garden and grounds measured seven-tenths of an acre in extent, and that plaintiff needed fifteen inches for its proper irrigation. Plaintiff testified that with a constant flow he would need eight or ten inches to irrigate his said garden and grounds. J.M. Yates, a witness for the plaintiff, testified that plaintiff's predecessor, William B. Yates, used the entire flow of the stream, fifteen or twenty inches, to irrigate his garden and grounds of less than an acre and for stock water; that there were but two places on the creek and that the owners of the first and second rights would alternate in the use of the entire flow of the stream.
Defendant testified that he had a larger garden than plaintiff, and had, in addition, three-fourths of an acre to half an acre of potatoes; that he also had about three and one-half acres which he had irrigated in hay or oats every year since 1912 when he purchased the land, besides using water for stock and other domestic needs, and that the entire flow of the stream did not furnish enough water to properly irrigate the oats.
W.B. Huffine, former owner of defendant's land and water right, testified that he found it necessary to use the entire flow of the creek to properly irrigate the garden and potato patches.
The record also shows that defendant Miller was under the impression up until the time this action was started, that one W.B. Huffine, a defaulting defendant herein, owned one-half of defendant's water right, and that the said Huffine expects later to acquire an interest in any water that is awarded to the defendant in this action. But the evidence is very meager as to what, if any, use the said W.B. Huffine *54 has had of the water of Foster Creek since the defendant purchased the first right, and whether defendant's use of the water was in any way curtailed or diminished by any act or claim of the said W.B. Huffine.
After a careful reading of the entire record, we cannot say that the evidence preponderates against the finding of the trial court that the respondent Miller has appropriated, beneficially used, and is now lawfully entitled to a first right to fifteen inches of the waters of Foster Creek.
The judgment is affirmed.
Affirmed.
ASSOCIATE JUSTICES HOLLOWAY, STARK and GALEN concur.
