213 P. 244 | Mont. | 1923
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 the 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 prior to the existence of Harlow-ton as a municipality, or at all, the plaintiff’s predecessor in interest, D. A. Holliday, appropriated 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 of 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 boundaries, the plans and specifications for which were prepared by a competent engineer and showed the details for the construction of culverts to inclose plaintiff’s ditch at points where it crossed certain streets. The culverts were constructed in accordance with specifications.
The prayer of the complaint, if granted, would require the
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 capacity 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 to irrigation other than 140 acres, the largest amount ever put in crop; so that, notwithstanding the amount of' water attempted to be appropriated 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 beneficial 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 evidence, and, since the culverts complained of have a much greater carrying capacity (200 to 225 inches), the plaintiff has no just cause 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 inches 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 appropriation 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.)
'Affirmed.