| Mont. | Dec 28, 1891
Action to determine the several rights of plaintiff and forty persons named as defendants in and to the waters of “ Race Track Creek,” a natural stream of water situate in Deer Lodge County, tributary to Deer Lodge River. The action was tried by the court sitting without a jury, and by findings made in writing, and judgment accordingly, the court found and determined the respective rights of all the parties to the action in and to the waters of said creek, and also the relation of such water rights to one another as to priority. All parties having set up their respective claims to certain portions of the water of said creek by pleading, a stipulation was made by them through their counsel to the effect that at the trial each party, whether plaintiff or defendant, should be deemed to have denied all allegations of the pleadings of every other party to the action claiming right to any of the waters of said creek, and that each party might introduce evidence iSto show non-appropriation, non-user, or abandonment by the plaintiff or any of the defendants.”
The questions brought here for review by this appeal arose between certain defendants. The court found and adjudged that defendants C. K. Hardenbrook and R. S. Kelley were entitled to four hundred inches of the waters of said creek, by reason of an appropriation thereof made in the year 1869, which finding and judgment made the water right of defendants Hardenbrook and Kelley the fourth in the order of appropriations. From this portion of the judgment certain other defendants, whose rights were adjudged to be subsequent to that of Hardenbrook and Kelley, have appealed.
The findings of fact by the court in relation to the water rights of defendants Hardenbrook and Kelley, upon which the court pronounced judgment in their favor, are as follows: a Findings for the defendants R. S. Kelley and C. K. Harden-brook. The court finds as facts that the Miners’ Ditch was
The point of contention on the part of appellants is that upon said facts found it was error to adjudge that the appropriation of four hundred inches of water from said creek, in favor of defendants Hardenbrook and Kelley, dated from the appropriation thereof through said Miners’ Ditch for mining purposes at the time set forth in the findings. They maintain that tho owners of the Miners’ Ditch were tenants in common of the water right acquired by the appropriation and use of the water taken thereby, and that when the use of said waters through said ditch for mining purposes ceased, and said ditch was abandoned in 1886, that was an abandonment of the water right which had been gained and held by said tenants in common.
On behalf of respondent it is admitted that the appropriators of the water of said creek, used for mining purposes through said Miners’ Ditch, were tenants in common of the
The several parties who owned the Miners’ Ditch, and acquired the water right by appropriation and use of the waters <of said creek, through said ditch, were undoubtedly tenants in common of such water right. (Bradley v. Harkness, 26 Cal. 69" court="Cal." date_filed="1864-07-15" href="https://app.midpage.ai/document/bradley-v-harkness-5435599?utm_source=webapp" opinion_id="5435599">26 Cal. 69; McConnell v. Denver, 35 Cal. 369; 95 Am. Dec. 107; Reed v. Spicer, 27 Cal. 58; Freeman on Cotenancy and Partition, § 88.)
But the use of the water for mining purposes through said Miners’ Ditch ceased in 1886, and that ditch has been abandoned since that year; and, as said in the finding, the “ waters claimed as belonging to the Miners’ Ditch were turned into Pace Track Creek in the year 1886, and were recaptured by defendant Hardenbrook, and used for the purpose of irrigating land belonging to him, to the extent of four hundred inches.” Was this a lawful exercise of the rights of a tenant in common of said water as against all, except other tenants in common, who may not have consented to such change of use? We think this proposition must be answered in the affirmative, and such holding affirms the judgment of the court below. We cannot draw from the finding of the court the conclusion which appellants’ counsel contends for, namely, that the abandonment of the Miners’ Ditch was also an abandonment of the entire water right acquired by the appropriation of water through said ditch. Abandonment is a matter of fact to be found by considering the act and intention of the party alleged to have abandoned a thing. (1 Am. & Eng. Encycl. of Law, 1, and cases cited.)
By referring to the findings of the court it will be seen that it was found, not only that the waters belonging to the Miners’ Ditch were turned back into Pace Track Creek, and were recaptured by Hardenbrook to the exte^ of four hundred anches, but that “the remaining amount of water belonging to
As regards the change in the use of the water right from one lawful and beneficial purpose to another, we think the holding in the case of Woolman v. Garringer, 1 Mont. 535" court="Mont." date_filed="1872-08-15" href="https://app.midpage.ai/document/woolman-v-garringer-6637193?utm_source=webapp" opinion_id="6637193">1 Mont. 535, to the effect that such change is lawful, covers this point of contention in the case at bar. The same rule prevails in California. (Kidd v. Laird, 15 Cal. 163; 76 Am. Dec. 472; Davis v. Gale, 32 Cal. 27; 91 Am. Dec. 554; Higgins v. Barker, 42 Cal. 233" court="Cal." date_filed="1871-10-15" href="https://app.midpage.ai/document/higgins-v-barker-5437520?utm_source=webapp" opinion_id="5437520">42 Cal. 233; Junkans v. Bergin, 67 Cal. 267" court="Cal." date_filed="1885-08-01" href="https://app.midpage.ai/document/junkans-v-bergin-5442168?utm_source=webapp" opinion_id="5442168">67 Cal. 267.)
It is ordered that the judgment be affirmed.
Affirmed„