14 Mont. 506 | Mont. | 1894
Peter Johnson commenced this action against twenty-one defendants, to determine the rights and priorities of himself and said defendants in the waters of Dempsey creek, for the purpose of irrigating agricultural lands. Upon the trial the court found all of their rights, and classified the same, and entered judgment accordingly. Herman Johnson, a defendant, appeals, being dissatisfied with the disposition of a
The difficulty as to this one hundred inches of water is that the findings of the court in respect thereto are apparently wholly inconsistent. The court finds that Johnson and Quinlan appropriated this one hundred inches of water from the waters of the creek, and then it finds that they got it from Herman Johnson’s water by adverse possession. If they obtained their title by the means described in one finding they did not obtain it in the manner set out in the other finding. If Johnson and Quinlan had held this water by adverse possession against Herman Johnson for the period of the statute of limitations the judgment is supported by the finding which was made to that effect. If the title of Johnson and Quinlan was by the appropriation in 1867 of this one hundred inches, then the judgment is not supported by the finding which was made to that effect, because the court also found that the appropriation by Herman Johnson was a year earlier. It is not for us to determine which finding is true, whether they got their water by adverse possession against Herman Johnson, or whether they attempted to appropriate it from the waters of the creek.
The case is therefore remanded, and the district court is directed to take testimony, make findings, and render judgment upon this point only; that is to say, as between Herman Johnson, on the one side, and Peter Johnson and Patrick Quinlan, on the other, let it be determined who is entitled to the one
Appellant also calls attention to the fact that Peter Johnson and Patrick Quinlan are awarded one hundred and three inches each, in the fifth class of priorities, when in fact they claimed in their pleadings only one hundred inches. Respondent says that this is a clerical error, and concedes that it should be corrected, as demanded. Let such modification therefore be made, on remittitur being filed below.
Remanded.