98 P. 1081 | Mont. | 1909
delivered the opinion of the court.
This action was brought by Octavia Prentice against Caroline McKay and Thomas Galahan to quiet title of plaintiff to a certain water right, and to secure an injunction restraining the defendants from interfering with the free use and enjoyment of such right by the plaintiff. The court found that the plaintiff was the owner of forty acres of land in section 18, township 4 south, of range 5 west, in Madison county; that this land is arid, and that forty miner’s inches of water are required for its successful irrigation; that in 1893 the predecessor in interest of plaintiff owned the land in section 18 now owned by the plaintiff; that on July 15, 1893, the predecessor of plaintiff constructed a ditch from certain springs and a stream on section 19, and by means thereof conducted forty miner’s inches of water to and upon the land in section 18. Finding No. 5 is as follows: 1 ‘ That the said lands with the said water right was thereafter, by mesne conveyance, conveyed to the plaintiff herein, Octavia Prentice.” The court also found that ever since the waters were so diverted the plaintiff and her predecessor in interest have continuously used the same for the irrigation of the lands in section 18. From these facts the court concluded that the plaintiff is entitled to an appropriation of forty miner’s inches of the waters of the springs and stream mentioned, and entered a decree quieting the plaintiff’s title to the same, and enjoining the defendants from interfering therewith. From the judgment and an order denying them a new trial, the defendants have appealed.
It appears that on and prior to December 11,1890, S. 0. Prentice was the owner of the lands in section 19, upon which are the springs and stream mentioned in the findings; that on December 11,1890, S. C. Prentice and his wife, Octavia, the plaintiff below
There does not appear to be any evidence to support finding No. 5 above. If we give to the evidence offered on behalf of the plaintiff that construction most favorable to her, it would seem
This being a suit in equity, we may inquire whether the respondent in fact made an appropriation of this water in 1893 or in 1899. The water which she assumed to appropriate was produced in springs and a stream on the land in section 19 above, then owned by S. C. Prentice in fee, subject only to a mortgage to Mrs. McKay. The United States and the state of Montana have recognized the right of an individual to acquire the use of water by appropriation (Rev. Stats. U> S., secs. 2339, 2340 [U. S. Comp. Stats. 1901, p. 1437]; Revised Codes, secs. 4840 et seq.; Wood v. Etiwanda Water Co., 122 Cal. 152, 54 Pac. 726; Welch v. Garrett, 5 Idaho, 639, 51 Pac. 405); but neither has authorized, nor, indeed, could authorize, one person to go upon the private property of another for the purpose of making an appropriation, except by condemnation proceedings. The general government has merely authorized the prospective appropriator to go upon the public domain for the purpose of making his appropriation (see note to Heath v. Williams, 43 Am. Dec. 265, [25 Me. 209]), and the statutes of this state (sections 4840-4891, above) only apply to appropriations made on the public lands of the United States or of the state, and to such as are made by individuals who have riparian rights either as owners of riparian lands or through grants from such owners. This is the doctrine announced in Smith v. Denniff, 24 Mont. 20, 81 Am, St. Rep. 408, 60 Pac. 398, 50 L. R. A. 741, where the court further said: “A trespasser on riparian land cannot lawfully exer
Reversed and remcnided.