or canal injures or damages the possession of any settler on the public domain the party committing such injury shall be liable to the party injured for such injury or damage." This section certainly fixes the liability of the ditch companies as far as they can be fixed by Congressional act governing the lands and waters of the public domain. Also there are legislative enactments in the respective States and Territories fixing the liabilities of the companies for faulty construction and negligence in other respects whereby injuries result,1 § 319. Companies Liability for Injuries to Stockholders' Rights. Irrigation corporations formed for maintaining water ditches, keeping them in repair and controlling and dividing the water between the several stockholders are bound to perform the duties prescribed in the certificate of incorporation, and for any neglect or failure to properly perform its duty in this respect it is liable to any stockholder who is injured thereby to the extent of the damages suffered by him. So also where the injury to a stockholder was occasioned by other stockholders above his land diverting more water than they were entitled to, under the terms of the incorporation the company itself is liable for the injuries sustained by him. And it is also held that the corporation cannot relieve itself from responsibility by pursuing a practice at variance with its agreement as created by the articles of incorporation without the consent of all the stockholders, and that any stockholder not assenting thereto will not be bound by any custom which the officers of the incorporation might adopt in contravention of its agreement to protect the rights of the several stockholders. In a case decided by the Supreme Court of Nevada 2 this subject was discussed at some length by Mr. Justice Hawley, and in the course of the opinion of the Court rendered by him he observed: "The stated objects of the corporation, as expressed in the certificate and the stipulation in the deed, clearly define the duties imposed upon the corporation. By 1 See Part Second. 2 O'Connor vs. North Truckee Ditch Co., 17 Nev. 245; 30 Pac. the terms and conditions thereof the corporation is bound to keep the main ditch supplied with water and to regulate and divide its use among the several stockholders in accordance with their respective interests, and it must necessarily follow that for any neglect or failure to properly discharge its duty in this respect it would be liable to the stockholder who is injured thereby to the extent of the damages suffered by him. "Recognizing this to be its duty the trustees of the corporation in the month of January, 1878, unanimously 'Resolved, That the trustees have gauges prepared for outlet of proper quantities of water to each stockholder, and that the trustees employ a man during the irrigating season to superintend and regulate the use of water; that every stockholder be credited each season at a value per share to be regulated by the trustees, according to the amount owned by said stockholder, and that trustees be empowered and instructed to embody the sense of this resolution in action, and use all possible means to prevent any stockholder from using more water than he owns without paying for it.' * * * "The corporation could not in opposition to the articles of incorporation, the trust deed and this resolution relieve itself from responsibility by pursuing a practice at variance therewith without the consent of all the stockholders, and any stockholder not assenting thereto would not be bound by any custom which the officers of the corporation might adopt in contravention of its agreement to protect the rights of the several stockholders." The Court therefore held in the above case that the instruments referred to created a contract between the stockholder and the corporation, and that the corporation was liable to any stockholder for any injury caused by the excessive diversion of water by the other stockholders.1 1 Newall vs. Hill, 2 Met. 181; Goodwin vs. Gilbert, 9 Mass. 510; Nugent vs. Riley, 1 Met. 117; Maule vs. Weaver, 7 Penn. St. 329; Clapham vs. Mogle, I Sev. 155; Shepherd's Touchstonė, 52, 122; Huff vs. Nickerson, 27 Me. 106; Finley vs. Simpson, 2 Zab. 311, 332; 3 Wash. Real Prop. 622. It is perfectly clear that in the case in hand there is a stipulation and agreement, as distinguished from a condition, in the deed, upon the breach of which an action lies. 2 Par. on Cont., 526-7. § 320. Contents of Chapter.-In the previous chapters of this work we have set forth the rights of the parties as acquired by the various methods in and to the waters of streams and lakes, and also those rights acquired to water from underground sources. And now, in general, it can be said that such being the rights of the appropriator or of the riparian proprietor, as the case may be, any material interference with those rights, acquired either with the water itself or with the ditch, canal, well, reservoir or other structure, by anyone not entitled to commit any such act an action will lie, and suitable remedies may be obtained both at law and in equity. If the persons or company constructing the works for diverting the waters of the stream or the reservoir for storing the water should construct those works negligently or carelessly, or without due regard to the solidity of the structures or the safety of the property rights of those below; and if afterwards those structures should break away and thereby cause damages the persons or company owning such structures will be liable to all persons in damages for the injures so caused. The present chapter will be devoted, first, to a discussion of the remedies at law; and second, equitable remedies. § 321. An Actionable Injury to Water-Rights. Where the act complained of is committed under a claim of right which if allowed to continue for a certain length of time would ripen into an adverse right and deprive a person of his property, he is not only entitled to an action for the vindication of his right, but also for its preservation. This is especially true of actions for the diversion of water, where there is a clear violation of an established right and a threatened continuance of such violation. In such cases it is not necessary to show actual damages in order that the injury be an actionable one. That there may be an invasion of a person's right to water which will justify an action without showing actual damage cannot be questioned. But in applying this doctrine the authorities hold a distinction must be made between those uses of water which are the exercise of the riparian proprietor's natural right and those which are not. Such a proprietor has a right in the arid west to use the water 1 Goddard on Easements, 423, 424; Angell and Ames on WaterCourses, 135; Barnes vs. Sabron, IO Nev. 247; Parker vs. Griswold, 17 Conn. 302-5; Stein vs. Burden, 24 Ala. 148; Webb vs. Portland Mfg. Co., 3 Sumner, 197; Holsman vs. Boiling Spgs. B. Co., 14 N. J. Eq. 343; Corning vs. Troy I. & N. F., 34 Barb. 491; 40 N. Y. 191; 39 Barb. 326; Crosby & Sons vs. Lightowler, 3 Eq. Cases (L. R.), 296; Lyon vs. McLaughlin, 32 Vt. 425; Kerr on Injunctions, 226, 393; Angell on Water-Courses, 449; High on Injunctions, § 456. of a stream for the purpose of irrigation as an incident to his ownership of the land. The right is not acquired by use. The only limitation is that the riparian owner must so use the water as to cause no actual material damage to another. On the other hand, no one proprietor has any right to divert in the technical sense any portion of the water permanently from another so that it either does not return to the stream at all or not until it has passed the land of him below. Such diversion would be a clear violation of a right, and if continued adversely for the requisite period would ripen into a title. An action will therefore lie for an injury to the right, without proving actual damage or showing that the riparian proprietor was making any practical use of the water. But so long as one proprietor had enough for his lawful practical uses it ought not and cannot be permitted to debar other riparian proprietors from applying so much water as they profitably can to agricultural purposes. It follows, therefore, that the one proprietor gains no right by his using the water for irrigation and the others lose no right. 2 § 322. Legal and Equitable Relief in Same Action.—In an early Montana case, the Supreme Court of that Territory held that cases in equity, in which equitable relief is demanded, and actions at law, in which an equitable defense is made, cannot be tried by a jury at law, but the decree must be rendered by the judge sitting as a chancellor in a Court of Chancery. Also, in a later case, the same Court held that legal and equitable relief cannot be obtained in the same proceedings, and a judgment for damages for the diversion of water and which perpetually enjoins parties from using the water is irregular and void. In rendering the opinion of the latter case, Murphy, J., said: "The proposition that law and equity cannot be blended in the same suit or action under our organic act was elaborately discussed and definitely settled in the case of Gallagher et al. vs. Basey et al., by this Court.” But in the case of Basey vs. Gallagher, decided by the Su 1 Gallagher vs. Basey, 1 Mont. 458. 2 Woolman VS. Garringer, I Mont. 535. |