| Mont. | Aug 15, 1870
This cause was presented to the court below on an agreed statement of facts. It appears, from this, that the respondent and appellant each owned a ranch on Prickly Pear creek. That of the appellant’s was higher up the creek than that of respondent’s. The respondent, first located his ranch, and, at the same time, claimed three hundred inches of water in this creek for the purposes of irrigating his‘land. In 1869, owing to a drouth, this was all the water there was in this creek, and this much was necessary to irrigate the land of respondent. The appellant then applied to the nearest magistrate, in accordance with the provisions of “An act to protect and regulate the irrigation of land in Montana Territory,” approved January, 1865, for the appointment of three commissioners to apportion what water there was in the creek between him and respondent. This commission met, and awarded one-half of the water to appellant, leaving the respondent the other half.
The respondent asks a decree against the appellant for three hundred inches of water. The case may be said to be an action to quiet title, presented to the court upon these facts. The court below gave judgment to the respondent for three hundred inches of water. From this judgment the appellant appeals to this court.
The first question presented is this award of the commission. The powers given this commission by the act under which they conducted their proceedings are clearly judicial. They are empowered by it to apportion the waters in a just and equitable proportion. This required them to determine what was just and equitable between these parties. In the next place the apportionment was to be made with a due regard to the legal rights of all. This required of them to determine what these legal rights were. The organic act of
It is not necessary for the court to determine, in this case, whether or not the doctrine of appropriation applies to ranchmen as well as to miners, concerning water rights, for the statement of facts shows that the ranch of appellant was above that of the respondent, and that, at the time this dispute arose, three hundred inches of water was flowing down the creek'by appellant’s ranch, which clearly indicates that the water had not been taken out of the creek above it. As a riparian proprietor the respondent would be entitled to have the waters of the creek flow down its accustomed and natural channel undiminished in quantity, and, below appellant’s ranch, could divert the same for purposes of irrigation as against him. The counsel for appellant, in their brief, say they claim their rights by virtue of the above statute. There are many reasons for holding that this, very statute recognizes or establishes the doctrine of appropriation of water for irrigation, limiting, however, the right to appropriate to persons owning land upon the banks of the stream from which the same is taken, and also limiting the quantity of water he can appropriate to what is necessary to irrigate his land. The permission given by that act to take water out of its natural channel for purposes of irrigation, where it damages land holders below the point where the water is diverted, is incompatible with the common-law doctrine in the case, of riparian proprietors.
Section 4 of the act I do not think, in any way, militates against this view. Any tribunal, governed by the established principles of law, making an apportionment of water in accordance with what is just and equitable, would
In this case the respondent was first in time, and, giving the construction to the statute indicated above, under it he would, undoubtedly, be entitled to the water in dispute.
For these reasons the judgment of the court below is affirmed, with costs.
Exceptions overruled.