12 Mont. 395 | Mont. | 1892
This appeal is from an order refusing to dissolve an injunction. By this action plaintiff seeks to obtain a decree confirming the prior right and title in him to the use and benefit of two hundred inches of the water of Banuack Springs Creek, for purposes of irrigating certain lands described in his complaint, as against the claims of defendants; and, by injunction, to prevent defendants, and all others acting for or under them, from further taking, interfering with, or diverting from plaintiff the said water; for two hundred dollars damages for past diversion thereof from plaintiff, and for costs of this suit.
Plaintiff’s complaint contains the usual allegation of citizenship; his ownership and occupation of certain described agricultural lands, upon which he avers he raises crops of hay, grain, and vegetables, and that water for irrigation purposes is necessary thereto; the appropriation of said quantity of the waters of said creek for the purpose of irrigating said land j the date of such appropriation, which plaintiff alleged to be in the year 1880; the continuous use of said water for such purposes from year to year since said appropriation; the interference of defendants with said alleged water right by taking, diverting, and using the water of said creek, which plaintiff
At the commencement of the action, on reading the verified complaint, the judge of the court wherein the same was pending, after requiring the execution of the usual bond in favor of defendants, granted a temporary injunction restraining defendants from further commission of the acts sought to be prevented, as above mentioned, until the further order of said court or the judge thereof in the premises.
Defendants filed answers to said complaint, in which defendant, Oscar G. Smart, denied having ever appropriated any of said water; or having ever claimed any water of said creek; or having in any manner diverted, or attempted to divert, the same; and asked to be dismissed, with his costs. Defendant, Alice L. Smart, by answer denied each and every allegation of said complaint; and averred prior right to said waters by reason of alleged prior appropriation thereof, for use in the irrigation of lands possessed by her, and described in her said answer, for agricultural purposes.
Thereafter defendants, having given notice of intention so to do, moved the court, upon the pleadings in said action, and upon affidavits, to dissolve the said injunction. The affidavits presented by defendants in support of said motion assert the acts done by defendant, Alice L. Smart, in reference to the appropriation and taking of the waters of said creek; that she commenced the construction of a ditch, in the fall of 1888, to divert said water upon her desert land claim, and completed the same, and diverted said waters onto her said land in the spring of 1889; that at that time there was not, nor had there been
Plaintiff resisted the motion to dissolve said temporary injunction, by filing affidavits of several persons on his behalf, wherein it was asserted that for a long period prior to this controversy the waters of said creek have not sunk at any point, at any time of the year, and said creek had “ never been dry above the ranch of plaintiff,” but maintains its usual volume at that place at all seasons of the year; that, as early as 1881, plaintiff took water out of said creek by means of dams and ditches, and used the same for irrigation of his meadows, and had used the waters of said creek upon his lands for irrigation purposes every year since; that, up to the year 1888, plaintiff had no other water available for irrigation purposes, except the water of said creek; that plaintiff raised crops of hay and grain upon his ranch every year since 1881, and that said land will not produce crops with
Having stated briefly the material facts involved in the case, we will discuss the questions raised by appellants.
1. They contend that the complaint does not state facts sufficient to warrant the granting of an injunction; and, to confirm this proposition, point to the fact disclosed by the pleadings and exhibits, that, while plaintiff avers that he appropriated said water in 1880, he filed no notice of appropriation, as provided by the laws of this State, until November, 1891. It is therefore insisted by appellants’ counsel that plaintiff’s appropriation took effect at the latter date only, and thus became subsequent to the appropriation of appellants, which, according to the averment of the answer, was made in October, 1888,
We are unable to conceive that the legislature intended, by sxxch proviso, otherwise than to declare that water rights acquired prior to said act, according to the laws theretofore in force, should in no wise be impaired or forfeited by failure to record the same. The legislative mind undoubtedly foresaw that some owners of such rights, acquired prior to said act, might, through inadvertence or absence from the country, fail to record such water rights as provided in said act; and also foresaw that, without such saving provision, complications and controversies, which might work great injustice, would be likely to arise by reason of the recording of water rights acquired prior to said act, wherein junior rights, so acquired, might be recorded before older rights on the same stream. Without some provision, this might have led to uncertainty and litigation, at least, which the legislature wisely avoided. Forfeitures are not favored in law, and, in the face of such clear expression of legislative intent, we would not be at all justified in holding that a water right alleged to have been actually acquired prior to the passage of said act by compliance with existing laws and customs, could only have effect from and after the date of recording the same, in case such recording was made after the time fixed in the act for recording prior acquired water rights. The act provided that prior acquired water rights shall not be forfeited, even by
2. Appellants contend that, “as water must be appropriated for a beneficial purpose, so it must be used in the furtherance of that purpose; that it cannot be ascertained from plaintiff's complaint what was the nature or extent of the use alleged by him; nor does the complaint state how much, if any, of the said water was necessary for use upon the land described in the complaint.”
Plaintiff alleges in his complaint “that he is the owner of, and in the actual occupancy, possession, and enjoyment of certain tracts of agricultural land situated in the county of Meagher, State of Montana, and which premises, and each and all thereof, require water for the purpose of raising and growing thereon, agricultural crops of hay, grain, and vegetables, said premises being known and described as [here follows description of lands]; that on the-- day of-, in the year 1880, plaintiff, being so in the occupancy, possession, and enjoyment” of said lands “ diverted and appropriated, by means <of a ditch, from the waters of Bannack Springs, which arise,”
We think these passages of the complaint clearly and concisely allege the purpose for which the appropriation of water was made; also the character and extent of the use; and also how much of said water was necessary for use upon the land described in the complaint. “ All of which he then needed and required for agricultural uses upon said lands of plaintiff,” is the allegation.
The remedy of injunction is proper in such an action where sufficient showing is made. (Code Civ. Proc. § 173; Fabian v. Collins, 2 Mont. 510.) In the case at bar the temporary injunction was granted on the showing made by the, verified complaint. There is no doubt that such a showing might be brought to bear upon the proceeding as would demand the dis
Affirmed.