124 P. 512 | Mont. | 1912
delivered the opinion of the court.
This cause is before this court upon appeals by the plaintiff from a decree in favor of defendants and an order denying his motion for a new trial. The controversy involves the right to the use of the water in Blind or Ryan lake, situated in Powell county. Dempsey creek has its source on the eastern slope of a range of mountains extending north and south, and flows through a canyon toward the southeast into the valley, and thence into Deer Lodge river. Blind lake is situated on the public domain, in a depression high up on the eastern slope of the same range, some distance to the southwest. To the north of the lake is a high ridge or backbone, extending several hundred feet to the east beyond the eastern rim of the lake, terminating in a point from which there is a sharp descent to the east, northeast, and south. To the south is another ridge which extends further to the east. Between these, and toward the east and north, extends a canyon, the natural surface of which slopes from the eastern rim of the lake for a distance of 2,725 feet at an average angle or grade of twelve feet to the hundred, and thence, at an angle of about sixteen feet to the hundred, 2,400 feet to the level of Dempsey creek. To the west the country is mountainous. The lake is fed by streams flowing into it from this direction and by flood water from melting snow. Over its eastern rim there is a small flow of water, estimated at from fifteen to forty inches, which follows a well-defined natural channel in the general direction of Dempsey creek. As it descends the slope, the flow gradually decreases in volume until it disappears entirely at or near a point 1,500 feet from the lake, or 3,625 feet from the channel of the creek.
Defendants’ answer puts in issue the material allegations of the complaint, and alleges that plaintiff’s right was adjudicated by the decree of 1902, and that he is estopped by it to set up the claim now made. The court found in favor of defendants: (1) That the decree of 1902 finally adjudicated the rights of all the parties to the use of the water flowing in Dempsey creek; (2) that the right of plaintiff therein was thereby adjudicated to be inferior to that of all the defendants; (3) that plaintiff’s appropriation made in 1902 was of water which is tributary to Dempsey creek; (4) that the normal flow from the lake, when not obstructed by the works and dam erected by plaintiff, reaches the creek and becomes a part of it “by means of open, underground seepage and percolation”; and (5) that after the water leaves the lake it flows “over and down a steep and precipitous route in the direction of and on the watershed of said Dempsey creek” until it enters it and becomes a part of the water therein.
The contention is that the evidence is insufficient to justify the findings. It will be noted that the term “open,” used in connection with the phrase “underground seepage and percolation,” renders finding 4 unintelligible. To this term as used here must be assigned the meaning “plain, in sight, exposed to view.” Water seeping or percolating underground cannot, in the very nature of things, be in plain sight or exposed to view. Doubtless
As heretofore stated, the question as to whether the lake is tributary to the creek was not directly involved in the action. The parties were not aware of its existence except by hearsay. Whether, therefore, the plaintiff is estopped by the decree to assert his present claim, depends upon the facts as they actually exist, and not upon a mere construction of it implied by the judgments in the contempt proceedings. Furthermore, so far as the record shows, the violation complained of by the defendants in each instance was an interference with the natural flow of the water in the creek, by which they suffered deprivation. It does not appear that the right of plaintiff to appropriate the overflow of the lake or to use the lake as a reservoir for storage purposes was considered or determined. The judgments are not pleaded. For these reasons they are not to be looked to as aiding the decree or as determinative to any extent of plaintiff’s rights. If in fact the lake is not tributary to the creek, the existence of the decree does not make it so, and, though it be conceded that in the contempt proceedings the court undertook to determine the rights now asserted by plaintiff, such
The contention of plaintiff, therefore, presents the question: Does the evidence sustain the ultimate finding that the lake is
The evidence introduced by plaintiff tended to show that there is a complete disappearance of it at a point 1,500 feet distant
It has been settled by a long line of decisions that percolating
Subsurface water flowing in defined channels reasonably
The condition in which this case has reached this court, however, does not require the announcement of any definite rule. It does not appear that the lake water reaches the creek by any
The decree and order are reversed, and the cause is remanded for a new trial.
Reversed and remanded.