BOYD et al. v. HUFFINE et al. (Supreme Court of Montana. Dec. 11, 1911.) 1. APPEAL AND ERROR (§ 1011*)-REVIEWFINDINGS OF FACT SUFFICIENCY OF EVI DENCE. The findings of the trial court must be accepted as conclusive, the evidence not showing a decided preponderance against them, though it might have reached a different conclusion. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. & 1011.*] 2. WATERS AND WATER COURSES (§ 19*)-AP PROPRIATION-RIGHTS OF PARTIES. Plaintiffs having acquired the right to use of the water of the R. stream by appropriation prior to that of defendant, and having use for it, may not be compelled to forego use thereof, because defendant has use for it, though plaintiffs might use the waters of the D. stream, where, if they were required to resort exclusively to, they would be compelled to either enlarge its use, and thus perhaps infringe on the rights of junior appropriators from it, or restrict their use of water to avoid such infringement. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 11, 12; Dec. Dig. § 19.*] Appeal from District Court, Gallatin County; W. R. C. Stewart, Judge. Action by Gertrude Boyd, for herself and as guardian for minors, against Roger Huffine and others. From a judgment for plaintiffs and from an order denying a motion for new trial, certain defendants appeal. Affirmed. adjoin those of plaintiffs on the east. One of the ditches through which the plaintiffs assert the right to divert and use water has its head near the eastern line of section 24 upon the lands owned by Stiles. The plaintiffs claim the right to the use of all the water flowing in the stream at the heads of their several ditches, amounting to 50 inches, basing their claim upon an appropriation by a predecessor, which is alleged to have been made in May, 1867, and aver that defendants have been wrongfully and unlawfully divertreparable injury. Defendants deny the right ing it away from their ditches, to their irof plaintiffs to the use of any of the water in excess of four inches, and allege that each has a superior right to all the water in the stream in excess of this amount, based upon appropriations either by themselves or their predecessors in interest, as follows: Defendant Cox, of 20 inches, made on June 1, 1892; defendant Martin, of 20 inches, made on June 1, 1888; defendant Stiles, 30 inches, made in April, 1881; and defendant Huffine, of 20 inches, made on May 1, 1893. Each of the defendants also claims to have They established his right by adverse use. perior rights. It found that the plaintiffs are entitled to The court tried the case without a jury. the use of 30 inches, through an appropriation made by Alonzo Reynolds, the father of Geo. D. Pease, for appellants. George Y. plaintiff Boyd, during the month of June, Patten, for respondents. BRANTLY, C. J. This action was brought to have determined the rights of plaintiffs and defendants to the use of the water flowing in Reynolds creek, in Gallatin county, and to adjust the relative priorities and amounts of their respective appropriations. The stream has its source in section 16 of township 22 north of range 5 east, and flows in a southwesterly direction through sections 17, 20, and 19 of this township, and sections 24 and 23 of township 2 north of range 4 east, and empties into Dry creek, which flows down from the north and east through section 23. The lands of the plaintiffs lie in sections 23 and 24 on both sides of the two streams, above and below their junction. L. J. Morgan and Roger Huffine, though served with summons, did not appear. The defendant Ecton appeared and answered, but at the opening of the trial defendant Cox was by agreement of counsel substituted in his stead as his successor in interest. Thus were eliminated from the case all of the defendants except Stiles, Cox, Emmett Huffine, and Martin. The lands of the defendants lie on Reynolds creek above those of plaintiffs, and, except those of Stiles, above the heads of plaintiffs' ditches. The lands of this defendant 1870; that defendant Cox is entitled to 18 inches as of June, 1891; Martin to 10 inches as of June, 1884; Stiles to 18 inches as of October, 1883; and Huffine to 10 inches as of June 1, 1893. A decree was entered adjudging the rights and priorities of the plaintiffs and defendants, respectively, in accordance with these findings. The defendants other than Huffine have appealed from the decree and an order denying their motion for a new trial. The only contention made is that the findings are not justified by the evidence. It will be observed that the Cox appropriation is found to have been made in June, 1891; whereas it is alleged in the answer to have been made a year later. No complaint is made of this apparent discrepancy. It will therefore be passed without further notice. The evidence found in the record covers nearly 400 printed pages. It will be impossible to set it forth and analyze it, even in a general way, without extending this opinion beyond any reasonable limits. The issues presented by it are as to when the appropriation through which the plaintiffs' claim was made; what the amount of it was; what amount of water flowed down the stream to the heads of plaintiffs' ditches at the time the appropriation was made; whether the lands owned by the plaintiffs require irriga For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes [1] While, on the whole, it may be said that the trial court might have reached a different conclusion, it cannot be said that the evidence shows a decided preponderance against any finding. Under these circumstances, this court must accept them as conclusive. Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6; Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918; Pope v. Alexander, 36 Mont. 90, 92 Pac. 203, 565. [2] Even if it be conceded that the plaintiffs might use the Dry creek right and forbear the use of the water in Reynolds creek altogether, it does not follow that, having made the first appropriation out of Reynolds creek and having use for it, they may be compelled to forego the use of the right thus acquired merely because the defendants desire them to do so or have use for it themselves. Having acquired the right through the Reynolds appropriation, plaintiffs are entitled to make a reasonable use of it for the purposes for which it was made, notwithstanding the fact that the defendants have necessity for it. If the plaintiffs were re creek right, they would be compelled either to enlarge its use and thus, perhaps, infringe upon the rights of junior appropriators from this stream, or to restrict the use in order to avoid such infringement. Norman v. Corbley, 32 Mont. 195, 79 Pac. 1059. tion; whether, when their appropriation was unreasonably small; nor are the findings as made, the volume of water flowing in the to the dates assigned to their respective apstream was less than at the present time; propriations, without substantial support. whether the amount claimed by them is greater than their necessities require, though it be conceded that their lands require irrigation; and, finally, whether plaintiffs have not a sufficient available supply from Dry creek to meet all their necessities. Upon all of these points the evidence was in irreconcilable conflict. The evidence introduced to sustain the plaintiffs' right, though not entirely satisfactory in some particulars, tends to show that in 1866, when Alonzo Reynolds made a settlement on the lands now owned by plaintiffs, the volume of water flowing in the stream was substantially the same as at the present time; the actual measurement of it, taken on March 24, 1909, at or near the heads of plaintiffs' ditches, for the purpose of this action, being 39 inches. It also tends to show that, when Reynolds constructed the first ditch, he diverted all the water and used it to irrigate lands in sections 23 and 24 upon which were growing crops, and that, barring certain years when it was diverted by those who were above him on the stream, and certain other years during which his crops were of such a character as not to required to resort exclusively to their Dry quire artificial irrigation, he, his tenants, and the plaintiffs, his successors, had used it down to the time the action was brought. Defendants' two main contentions are: That the award of 30 inches to the plaintiffs is too large in view of the area of land upon which it must be used, and that the evidence shows, without substantial contradiction, that they have another supply by means of a ditch taken from Dry creek, to the north and east, which is or can be made available for use upon the same lands. There is substantial evidence tending to show that a volume of less than 30 inches would not furnish head enough to make the use effective for any purpose, and that the nature of the ground to the north is such that it would be impracticable for plaintiffs to maintain a ditch to convey water from Dry creek to the place of use. Indeed, the evidence tends to show that the first ditch taken out of Rey-1. nolds creek in 1870 was constructed because of the difficult character of the ground through which a ditch from Dry creek, theretofore used, had been constructed, and that, after the Reynolds creek water was made available, the latter ditch was abandoned entirely. There is also evidence tending to show that all the water which plaintiffs are entitled to use out of Dry creek is required to irrigate other lands along that stream upon which the Reynolds creek water cannot be used, and that its use for this purpose is necessary. In view of the evidence showing the purposes for which the respective defendants had been using water and the extent of their use, the award to each of them is not No claim is now made by either defendant that he has acquired a right as against plaintiffs by adverse use. This claim seems to have been abandoned at the trial. The judgment and order are affirmed. SMITH and HOLLOWAY, JJ., concur. HANSEN et al. v. LARSEN et al. (Supreme Court of Montana. Dec. 28, 1911.) APPEAL AND ERROR (§ 907*)-FINDINGSPRESUMPTIONS. Where the evidence is not in the record, the court on appeal will assume that it supports every finding made or necessarily implied. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3673; Dec. Dig. § 907.*] 2. APPEAL AND ERROR (§ 931*)-FINDINGSPRESUMPTIONS. Under Rev. Codes, § 6766, providing that no judgment shall be reversed for want of findings at the instance of a party who shall not particular fact necessary to support the judghave requested findings, the existence of a ment will be deemed to have been found by implication if warranted by the issues, where the record does not disclose any request for an express finding as to such fact. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 8 3728, 3762-3771; Dec. Dig. § 931.*] 3. WATERS AND WATER COURSES (§§ 145-priated and used of the waters of Peterson 152*)-EXISTENCE OF WATER RIGHTS. creek 250 inches of date April 1, 1866, and Rev. Codes, § 4842, providing that a person entitled to the use of water may change 150 inches of date April 1, 1867; that these the place of diversion, if others are not injured waters were appropriated for placer mining thereby, and may extend the ditch by which purposes and used exclusively for mining, unthe diversion is made to any place other than til May 1, 1904; but that such use was conwhere the first use was made, and may use the water for other purposes than that for fined to the spring and summer of every year which it was originally appropriated, does not and not later than July 20th; that the waters expressly, or by implication, declare that a so appropriated and used were conveyed to change in the place or character of the use of water, though it may affect others adverse- and used at a point beyond the watershed of ly, impairs the right in the use, which is prop- Peterson creek, so that the water not acterty, and when once acquired cannot be lost ually consumed did not return to Peterson except by the modes prescribed by law, but such change may give rise to an action for creek, but flowed into Deer Lodge river and damages or justify an injunction, and a party away from the Peterson creek basin; that insisting that a change has affected him ad- about May 1, 1904, Kohrs & Bielenberg changversely has the burden of proving that fact. ed the use of the water from a mining to an [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. §§ 145-152.*] agricultural use, and changed the place of 4. APPEAL AND ERROR (§ 907*)-FINDINGS-lands. In its conclusion of law No. 27 the use from their mining to their agricultural PRESUMPTIONS. Where a stipulation of the parties in a court determined that Kohrs & Bielenberg suit involving water rights gave each the right are entitled to use the waters, thus approto introduce evidence to show title or right in and to any part of the waters of a stream by priated, up to July 20th every year, and adverse use as fully as though pleaded, the during such periods are entitled to convey court properly received evidence that a change the same way from the watershed of Peterin the use of water from mining to agricultural purposes, by one who had appropriated the son creek. This briefly epitomizes the finding same for mining purposes, did not affect ad- and conclusion attacked upon this appeal. versely the rights of other proprietors, and The decree adopted and followed conclusion that the agricultural use was for lands situated without the basin of the stream, and, in the No. 27. Appellant contends that conclusion absence of the testimony, the court on appeal No. 27 and the decree are not supported by will assume that the trial court did so, and finding No. 11, and that finding No. 11 is not that its findings to that effect were justified warranted by the pleadings. by the evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3673; Dec. Dig. § 907.*] Appeal from District Court, Powell County; Geo. B. Winston, Judge. [1] The evidence is not before us, and we will assume that it fully supports every finding made or necessarily implied. [2] 1. The argument of counsel for appellant is that, to justify conclusion No. 27 and the decree, it was necessary for the trial court to find: (a) That there was a change in the use of the Kohrs & Bielenberg appropriations from mining to agricultural; (b) that such change did not affect adversely the rights of other appropriators; and (c) that Action by Anna C. Hansen and another against Johannes Larsen and others to determine the relative rights of the parties to the use of the waters of a stream.. From a judgment establishing the rights of the defendants Kohrs & Bielenberg, defendant the Conley & McTeague Company appeals. Af-the agricultural use was for lands situated firmed. Thomas F. Shea and Galen & Mettler, for appellant. Rodgers & Rodgers and Moncure Cockrell, for respondents. HOLLOWAY, J. This suit was brought to have determined the relative rights of the parties to the use of the waters of Peterson creek in Powell county. The trial court made findings of fact and conclusions of law and rendered and entered a decree. From that decree, in so far as it establishes the rights of the defendants Kohrs & Bielenberg, the defendant Conley & McTeague Company, a corporation, appeals. Hag without the Peterson creek basin. The first The record presents only the judgment roll, and the appeal challenges but one finding of fact (No. 11), one conclusion of law (No. 27), and the decree in so far as it follows conclusion No. 27. By finding No. 11 the trial court found that Kohrs & Bielenberg, and their grantors and predecessors in interest, appro- implied. For other cases ree same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes PETERSON v. CITY OF BUTTE. (Supreme Court of Montana. Nov. 20, 1911. On Motion for Rehearing, Jan. 11, 1912.) 1. PLEADING (§ 349*)-MOTION-JUDGMENT ON PLEADINGS. Under Rev. Codes, 6534, 6538, the [3] 2. But it is insisted that the pleadings do not warrant an express or implied finding upon either of these facts; and this is based upon the assumption that it was incumbent upon Kohrs & Bielenberg to plead these facts in order that issues might be joined and the questions tried, before findings could be pendency of an action between the same parmade. Section 4842, Revised Codes, provides: ties for the same cause of action is a ground "The person entitled to the use of water may of abatement of another action therefor. By change the place of diversion, if others are section 6457 the fact that judgment has been entered in the former action is not conclusive not thereby injured, and may extend the that it has been finally determined. Section ditch, flume, pipe or aqueduct, by which the 7188 provides that an action is deemed to be diversion is made, to any place other than pending from the time of its commencement until it is finally determined on appeal, or until where the first use was made, and may use the time for appeal is passed, unless the judgthe water for other purposes than that for ment is sooner satisfied, and thereby qualifies which it was originally appropriated." While section 6710, which provides that a judgment the full force of this language is acknowledg- parties in an action or proceeding. In an acis a final determination of the rights of the ed, counsel for appellant insist that the appro- tion for damage to property by a change of priator who undertakes to establish his right street grade, the answer set up a suit upon to use water at a place or for a purpose dif- the same cause of action between the same parties pending and undetermined. The reply, ferent from that for which the appropriation although it alleged that a judgment was enterwas originally made must show affirmatively ed in the cause of action in question, did not that such change does not affect adversely deny that the cause was still pending, or allege any other appropriator. The statute quoted Held, that reply was no sufficient answer to that the judgment therein had been satisfied. is not susceptible of such construction. The the answer, as in the state of the pleadings rule is recognized everywhere that the right there was nothing to show that the former to the use of water, duly appropriated, is prop-new trial or on appeal, so that a judgment on cause was not still pending on a motion for a erty, and when once acquired cannot be lost the pleadings was properly entered for the deexcept by the modes prescribed by law. The fendant. statute does not expressly or by implication declare that a change in the place or character of the use. even though such change does affect the rights of others adversely, shall impair the right in any respect whatever. Such change might give rise to an action for damages or justify the issuance of an injunction, but it does not impair the right itself. It would seem logical, then, to hold that the burden is upon the party who insists that such change has affected him adversely, to allege and prove the facts; or, in other words, that the restrictions in section 4842, above, are matters of defense. This is the conclusion of the Supreme Court of California in Jacob v. Lorenz, 98 Cal. 332, 33 Pac. 119, and is, we think, correct. [4] But there is a further and conclusive answer to this contention of appellant. The record contains a stipulation entered into by the parties before the trial, as follows: "At the trial each party may introduce evidence to show title or right in and to any part of said waters by adverse possession or adverse use or ownership of any of said waters as fully as though the same was duly pleaded by such party." Under this agreement the court might properly have received evidence of facts "b" and "c" above, and in the absence of the testimony we will assume that it did so in so far as findings upon such facts are necessary. The judgment is affirmed. [Ed. Note. For other cases, see Pleading, Dec. Dig. § 349.*] On Motion for Rehearing. 2. JUDGMENT (§ 305*)-MODIFICATION. [Ed. Note. For other cases, see Judgment, Dec. Dig. § 305.*] 3. JUDGMENT (§ 571*)-BAR OF JUDGMENTSTATUTE OF LIMITATIONS. Where judgment in abatement of an action was entered on the pleadings, it could not determine the merits of a defense setting up the plaintiff's reply set up the dismissal without bar of the statute of limitations, where the prejudice of an action brought within the time limited by statute, and the bringing of the present action within a year thereafter as the second action was thereby alleged to be sufficiently brought, under Rev. Codes, & 6464, and the determination of the truth of the reply can be secured only by the consideration of the evidence. [Ed. Note. For other cases, see Judgment, Dec. Dig. § 571.*] 4. JUDGMENT (§ 562*)-BAR OF JUDGMENT RES ADJUDICATA. Rev. Codes, § 6464, provides that after the reversal of a judgment in an action commenced within the time limited by the statute of limitations, or the termination of the action in any manner other than by voluntary discontinuance, dismissal for neglect to prosecute, or final judgment on the merits, a new action BRANTLY, C. J., and SMITH, J., concur. may be commenced for the same cause, even that the cause of action alleged therein was after the expiration of the time limited, where barred by the limitations prescribed by secbrought within a year after the reversal or termination. A defense of res adjudicata was tions 6447 and 6449 of the Revised Codes. interposed to an action, and plaintiff's reply At the close of the evidence, the court on thereto set up that, though a judgment in bar motion of defendant directed a verdict in its was entered in a former suit on the same cause favor, and judgment was on March 14, 1910, of action between the same parties, it was not upon the merits, but upon the ground that entered accordingly. The present action was still another cause between the same parties commenced on January 28, 1911. In its and for the same cause of action was still answer the defendant interposed three afpending, and that the defense of the statute of limitations was held sufficient, because plain-firmative defenses: (1) That the cause of tiff could not bring himself within the stat- action was barred by the provisions of secatory exception provided by section 6464. tions 6447 and 6449 of the Revised Codes; Held, the reply, if supported by the evidence, was a sufficient answer, and as the court could not determine its merits without an inspection of the judgment roll, which it could make only upon a hearing of evidence, a judgment on the pleadings could not determine the sufficiency of such defense, and hence should not purport to be on the merits. [Ed. Note. For other cases, see Judgment, Dec. Dig. 562.*] Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. Action by John Peterson against the City of Butte. From a judgment for defendant on the pleadings, plaintiff appeals. Affirmed. Nolan & Donovan, for appellant. H. Lowndes Maury, John A. Smith, and N. A. Rotering, for respondent. (2) that cause A2,026 was still pending and undetermined; and (3) that in another action theretofore tried in the district court of Silver Bow county, in which the parties plaintiff and defendant in this action and the cause of action alleged are identical, a judgment had been rendered and entered upon the merits, and that, this judgment, never having been reversed, modified, or set aside, is res judicata as to the right of plaintiff to recover in this action. The judgment relied on in this latter defense is the judgment rendered in cause A2,026 on March 14, 1910. In his reply the plaintiff does not deny that cause A2,026 is still pending, or allege that the judgment therein has been satisfied, nor does he allege facts or circumstances showing that such is the case. He denies that BRANTLY, C. J. This is an appeal by it was rendered on the merits, and then alplaintiff from a judgment rendered against leges that the court directed the verdict him on the pleadings in an action brought therein for the plaintiff, upon the ground by him to recover damages alleged to have and for the sole reason that, the action havbeen caused to his property by a change by ing been commenced while cause No. 11,699 the defendant in the grade of its streets was still pending and undetermined, it was upon which the property abuts. The plead- not commenced in pursuance of the provisions ings are somewhat voluminous. We shall of section 6464, Revised Codes, and hence not undertake to give a synopsis of them. was barred by the statute of limitations. The following statement of facts gathered Counsel for defendant in their motion defrom them is sufficient to present the question|manded judgment on several grounds, among submitted for decision: Plaintiff's property others that the reply of plaintiff admitted consists of a lot situate on the northwest that another action, viz., cause A2,026, was corner of West Caledonia and Jackson streets still pending. We think that the motion within the corporate limits of defendant | for judgment was properly granted. city. The building thereon was erected in 1901 to conform to the grade of the streets as it then was. During the year 1904 the defendant caused the streets to be graded by raising them to the height of somewhat more than 6 feet above the former grade. On May 31, 1905, the plaintiff commenced an action against the defendant to recover the damages claimed in this cause. The action was tried on February 26, 1909. The plaintiff was nonsuited. This action was designated in the files of court as No. 11,699. Judgment finally disposing of the cause was entered on January 26, 1911. This judgment dismissed it without prejudice. In the meantime, on April 28, 1909, the plaintiff had commenced another action to recover upon the same cause of action. This was designated as cause No. A2,026. The defendant interposed the defenses that cause 11,699 was still pending and undetermined, and [1] It was incumbent upon the plaintiff to put in issue the allegations of defendant's special defense, or to allege facts from which it would appear prima facie that the former action had been finally terminated. If it appears from the face of a complaint that another action is pending between the same parties for the same cause, the pleading is open to objection by demurrer. Rev. Codes, § 6534. The objection may be taken in the words of the statute. Section 6535. When this fact does not appear, the objection may be taken by answer. Section 6538. In either case the pendency of the former action is a conclusive reason why the court shall not entertain the latter. The fact that judgment has been entered in the former action is not conclusive that it has been finally determined. An action is commenced when the complaint is filed. Section 6457. “An action is deemed to be pending from the time of its For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |