Jacobs v. City of Harlowton, 213 P. 244

Jacobs v. City of Harlowton

213 P. 244

Mont.

1923

Check Treatment

ME. JUSTICE GAUEN

delivered the opinion of the court.

This is an action in injunction, brought to restrain the defendant from interfering with or obstructing the flow of water diverted from the Musselshell Eiver through plaintiff’s ditch, to his lands, which water was appropriated and used for irrigation in the successful growing of agricultural crops. It appears that thе defendant is a municipal corporation located within the county of Wheatland, and that the plaintiff is the owner and in occupancy of 520 acres of land contiguous to the city of Harlowton; that for the purpose of irrigating such lands in the year 1902, long priоr to the existence of Harlow-ton as a municipality, or at all, the plaintiff’s predecessor in interest, D. A. Holliday, approрriated a water right for irrigating the land to the amount of 600 inches, to be diverted by means of a dam and headgate and carried by the the ditch in question to the land now owned by plaintiff. In the season of 1919, prior to the institution of this action, the plaintiff had under irrigation a total оf 140 acres, and that is the greatest total acreage ever cultivated or irrigated by the plaintiff or his predecessors. In 1914 the city of Harlowton created an improvement district in accordance with the law providing for the construction of cement sidewalks and cement curbs on all streets and avenues, also cement crosswalks at all street and avenue intersections within its boundаries, the plans and specifications for which were prepared by a competent engineer and showed the details fоr the construction of culverts to inclose plaintiff’s ditch at points where it crossed certain streets. The culverts were construсted in accordance with specifications.

*318At the time of the creation of the improvement district and the making of such improvements, the land of the plaintiff belonged to the estate of A. C. Graves, of which F. P. Marrs was then the administrator, and he was also a member of the city council of 'Harlowton. Marrs was present at various meetings of the council when the several proceedings lоoking to the creation of the improvement district were discussed, made no protest whatsoever, and the Graves estate рaid its improvement assessments from year to year on account of such improvements upon certain lots owned by it in the imprоvement district, without objection or protest. The ditch is at a point below the last culvert complained of, off grade for a distance of about fifty yards, so that the water in the ditch will back up and overflow, and the general gradient of the ditch otherwise is fifteen fеet fall to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍10,000 feet. The maximum capacity of the culverts is 225 inches of water. The plaintiff was acquainted with the land irrigated by the ditch as early as April, 1915, at that time being interested in a lease of the land; the improvement district having then been created and the culverts constructed. In 1918 he held the land under lease, and because of inability to obtain sufficient water cut but fifteen tons of hay, and of twenty-five acres of land in oats raised but half a crop. While still in possession of the land, and after such knowledge of the conditions existing, hе purchased the land from the Graves estate in February, 1919, accepting in April following a transfer of title by an ordinary warranty deed, withоut special covenants or other agreement. The land was conveyed to the plaintiff and accepted by him with full knowledgе of conditions as they existed.

The prayer of the complaint, if granted, would require the [1-4] issuance of a mandatory injunction compelling the defendant to remove its concrete conduits placed by it at points of intersection of plaintiff’s ditch and .the street crossings. Upon issue joined the cause was tried to the court without a jury, after which findings of fact and conclusions of law were made and filed in favor of the defendant, upon *319which judgment was duly еntered. The appeal is from the judgment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and from an order denying plaintiff’s motion for a new trial.

Although many errors are assigned, there is, in our opinion, but one question involved determinative of these appeals, viz.: Are the culverts in question of sufficient size and capаcity to convey ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍all the water to which plaintiff is entitled through his ditch?

There is no testimony as to the amount of plaintiff’s land susceptible tо irrigation other than 140 acres, the largest amount ever put in crop; so that, notwithstanding the amount of' water attempted to be аppropriated by his predecessor in interest, he is limited in right under the facts in this case to the amount the ditch will carry put to benefiсial use. One hundred and forty inches of water delivered on plaintiff’s land is ample to irrigate his lands under cultivation, as shown by the evidencе, and, since the culverts complained of have a much greater carrying capacity (200 to 225 inches), the plaintiff has no just cаuse for complaint. He had full knowledge of the condition of the ditch, the existence of the culverts, and the carrying capacity of the ditch, and had had such knowledge several years before he made purchase. The plaintiff’s position would appear to be that, because his predecessor in interest had many years before filed an appropriation for 600 inchеs of water with which to irrigate plaintiff’s lands, therefore the culverts constructed by the city should have a carrying capacity for that amount irrespective of plaintiff’s needs. There is, and can be, no merit in such contention. The extent of an appropriаtion of water is limited to beneficial use, and this irrespective of greater quantity attempted to be appropriated. (Bailey v. Tintinger, 45 Mont. 154, 122 Pac. 575; Conrow v. Huffine, 48 Mont. 437, 138 Pac. 1094.) Again, the appropriator is limited in his rights to the amount ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of water his ditch will actually deliver to the place of use. (Wheat v. Cameron, 64 Mont. 494, 210 Pac. 761.)

*320“As every appropriation must be made for a beneficial or useful purpose, * * * it becomes tbe duty of tbe courts to try the question of tbe claimаnt’s intent by bis acts and the circumstances surrounding his possession of tbe water, its actual or contemplated use and the purposеs thereof.” (Toohey v. Campbell, 24 Mont. 13, 60 Pac. 396; Miles v. Butte Electric & Power Co., 32 Mont. 56, 79 Pac. 549; Smith v. Duff, 39 Mont. 382, 133 Am. St. Rep. 587, 102 Pac. 984.) Tbe appropriator’s need and facilities, if equal, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍measure the extent of his appropriation. (Sayre v. Johnson, 33 Mont. 15, 81 Pac. 389; Bailey v. Tintinger, supra.) If his needs exceed the capacity of his means of diversion, then the capacity of his ditch measures the extent of the right. (McDonald v. Lannen, 19 Mont. 78, 47 Pac. 648; Bailey v. Tintinger, supra.) Applying these settled principles, it is plain that the culverts will carry all the water to which plaintiff is legally entitled. Tbe trial court was correct in denying an injunction and in entering judgment in defendant’s favor. The judgment and order are affirmed.

'Affirmed.

Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Stark concur.