11 Mont. 422 | Mont. | 1892
Appellant makes six specifications of particulars in which he claims that the decision is not supported by the evidence. But in his brief he relies upon one main proposition. If he fails in his support of that, the rest of his structure falls. If it be true that the spring, the waters of which are in controversy, was not one of the sources of Burt Creek, then the
It cannot be questioned that the evidence shows these facts i That the spring lies on high ground between the forks of the creek; that before the spring was turned by a ditch the tendency of the movement of the water was towards the west fork; that in freshets, and when stimulated by melting snows, the water, perhaps, flowed overground to the west fork; that in the summer, which is the irrigating season, the water did not flow on the surface to the west fork or elsewhere, it sank. These facts are not all stated in the findings, but we mention the evidence to that effect as explanatory of the situation and the findings. Now, the plaintiff contended that the direction of the flow of the waters of the spring, so far as it was observable, was towards the west fork; that the west fork lay lower than the spring; and that the water of the spring must go to the west fork, and did go to that fork. No witness pretended to know, from any actual observation, the course of any subterranean flow of the spring water. The evidence upon the point, as to whether the waters oí the spring reached the west fork, was of this character; that is to say, plaintiff claimed and undertook to establish by evidence, that when the water of the spring was gathered up and carried off in defendant’s ditch, and thus diverted from its natural destination, wherever that might be, the flow of water in the creek, below where plaintiff contended that the waters of the spring reached the creek, was appreciably diminished. Defendant controverted this claim of plaintiff, and introduced evidence to show that, when he carried away and used the waters of the spring, the flow in the creek was not diminished. This was the sort of testimony upon which the District Court was obliged to find whether or not the spring was a source of supply of the creek. The court found that it was not. It is idle to contend that there was not a sub
The suggestion of appellant’s brief that the court below found that the water will not flow down hill is not a statement of the District Court’s finding. The District Court found that this water did not flow down hill to the place where appellant desired to have it. That finding is not inconsistent with the fact that the water obeyed the law of gravitation; that it went downward somewhere, but did not appear at the point where it was to the interest of appellant that it should appear — that is, in Burt Creek.
Strickler v. City of Colorado Springs, 16 Colo. 61, cited by appellant, has no application. That case simply announces a general principle, in regard to which there is no contention in this action, that the rights of a junior appropriator of water from a tributary stream are subject to the rights of a prior .appropriator from the main stream below. But the controversy in the case at bar is as to the fact whether the water in litigation is a tributary, not what the rights should be, if it were ■conceded to be a tributary. Nor is Strait v. Brown, 16 Nev. 317; 40 Am. Rep. 497, cited by appellant, in any manner in point. The case at bar does not raise any distinction, of law ■or fact, as to percolating water and channel water, subterranean or superficial; but the matter on this appeal is simply the fact of whether or not the water of the* spring in its natural flow reached the creek at all — a fact which the court found in favor of the defendant, upon a substantial conflict of the evidence, a finding which there is not precedent for our disturbing.
Affirmed„
