Galiger v. McNulty

*347 HONORABLE WM. H. POORMAN, District Judge, sitting in the place of CHIEF JUSTICE CALLAWAY, who deemed himself disqualified, delivered the opinion of the court. This action was instituted to have determined the relative rights of the parties to the use of waters of Ramshorn Creek, in Madison county. The appeal is from the judgment. The plaintiffs allege their separate ownerships of certain tracts of land in the Ramshorn Yalley requiring irrigation, their appropriation and use of water from Ramshorn Creek therefor, the invasion of their rights by the defendants, and they ask that they be decreed to be entitled to the use of the waters and that defendants be restrained from interfering with such use. Plaintiffs also plead a former decree, No. 916, made and entered August 30, 1909, in an action then pending in the district court for said county involving water rights in Ramshorn Creek. *348 Several of the defendants appeared by demurrer or answer. The appealing defendants Flora McNulty and Mary Swayze joined in an answer in which they admit certain allegations of the complaint and deny others; plead a former decree entered in said district court on the 8th of October, 1875, in an action then pending, to which their predecessors in interest were parties defendant. That cause in the transcript is referred to as No. 1249. The said defendants, further answering the complaint, as ground for affirmative relief allege their ownership of certain placer mining claims in “the basin of Bivens Gulch,” the necessity of water to operate the same, and the appropriation by their predecessors in interest of all the waters of Ramshorn Creek prior to any other appropriation. The reply of plaintiffs negatives the affirmative allegations of the said defendants’ answer. The intervener and appellant Peter J. Simonsen bases his claim upon an alleged purchase of a part of the rights of the other appellants. The reply of the plaintiffs denies this claim of the intervener. The specifications of error are numbered 1 to 66, inclusive, and include a very wide range. Respondents contend that many of the alleged errors are not set out with the particularity required by the rule of this court. There may be merit in this contention, but all questions involved may be considered under a few general heads and general propositions of law. The real question is, Have the rights of the appealing defendants, in and to the waters of the stream from which diversion is made, been properly adjudicated, preserved, and protected ? It appears from the transcript that Ramshorn Creek at low water flows about 117 inches at the head of the Miners’ ditch, and in extreme high water about 1,600 inches apparently at the head of the McKay ditch; that there qre approximately 700 acres of land along this creek irrigated with this water by the respondents. The water used by appellants is diverted from Ramshorn Creek and conducted through ditches referred to as the Miners’ ditch, or upper ditch, the Hofeker or Stanley *349 ditch, used for a time, and the McKay, or lower ditch, without the watershed of Ramshorn Creek and into Bivens Gulch, where for more than fifty years it has been used by the appealing defendants and their predecessors for placer mining purposes, and, after being so used, will not return to Ramshorn Creek, but flows down Bivens Gulch where it is used by intervener for irrigating argieultural lands. In the previous “water suit” No. 916, relative to these same waters, tried in said county in 1909 a judgment and decree was on August 30, 1909, duly made and given, adjudicating the rights of the parties thereto. The appellants and the defendant Dulien were not parties to that suit. At the trial of the instant case, the plaintiffs offered in evidence this decree No. 916, entitled Haines et al. v. Mock et al. This was admitted without objection. There was a lengthy discussion between counsel for the respective parties relative to the effect of said former decree upon the rights of the parties in the instant case, the conclusion reached being that said former decree was, as between themselves, binding upon all who were, or whose predecessors in interest were, parties to that suit, but was not binding upon the appellants herein, they not having been parties thereto. It was agreed that the plaintiffs in this present action, No. 2176, were parties in the former suit No. 916, or a successor in interest of a party in that action except appellants and Dulien. The court stated that it would be necessary for plaintiffs to prove the amount and date of their appropriations. It was then stipulated that the former decree was a correct statement of the dates and amounts of plaintiffs’ appropriations. It was further agreed that the former decree (916) was not a stipulated decree, but was reached upon evidence taken in open court. A map showing the lands and ditches owned by plaintiffs was put in evidence without objection. Plaintiffs then introduced some oral evidence tending to prove that their claimed rights had been invaded by the appealing defendants and rested their case. In specification of error No. 65 appellants claim that the court erred in giving effect to the decree in cause No. *350 916 “as res ad judicata or as prima facie evidence or any evidence against defendants McNulty and Swayze.” Had the court regarded these findings as res ad judicata as to defendants, the trial would have there ended, but they were not introduced or used to restrict appellants in their evidence in proving their claims or in combating the claims of plaintiffs. The introduction of the decree was to avoid the necessity of plaintiffs producing oral evidence as to the fact that they had made appropriations and the date and amount thereof; that is, to avoid a reproduction of the evidence that plaintiffs had some right which it. would require evidence to refute. It was to that point to which the stipulations and’ decree were directed. The decree was binding upon all parties to that action without any stipulation in. the case at bar. When, under the stipulations, it was put in evidence with the oral testimony, a prima facie ease was made by plaintiffs, and the defendants were given full opportunity to establish a superior or prior right or to disprove the claims of plaintiffs. The objection that it does not appear that this decree is now in force is without merit, and, if it were material in this case at all under the stipulations, the defendants failed to make any showing of any modification of that decree. There was neither error nor abuse of discretion in admitting this decree or in the effect given to it. At the opening of appellants’ case the former judgment, alluded to in their joint answer, with the entire judgment-roll, was offered in evidence. This is cause No. 1219, McKinney et al. v. McKay et al., the judgment or decree bearing date October 8, 1875. Plaintiffs objected to its introduction on the ground that it was not an adjudication of any water right, but only a judgment for costs in a suit for injunction, and that the plaintiffs were not parties thereto. Both the decree and the judgment-roll were admitted, subject to the objection. Appellants contend that this 1875 decree gives to them a prior right to all the waters flowing in said Ramshorn Creek at the point of diversion. In that suit the plaintiffs alleged prior rights in themselves to the use of the waters of Ramshorn *351 Creek; that the predecessors in interest of the appellants in the instant case had interfered therewith and asked that they be enjoined and restrained from further interference. In their answer the defendants in that suit in effect denied generally the claims of the various plaintiffs, pleaded a statute of limitations, and asked “that they be hence dismissed and for their costs of suit.” The defendants did not set up any prior appropriations upon which they relied, and neither party asked the adjudication of any water rights in their pleadings. The court, as appears from the record, made certain findings, which appellants claim is an adjudication of their prior right to all of the waters of Ramshorn Creek. These findings, if regarded as such in a water right suit, are very general and indefinite as to time, amount, right and necessity. There were not any conclusions of law, but following the findings and independent thereof and without incorporating them in the decree or making any allusion to them, we have the statement: “Wherefore it is adjudged and decreed that the defendants have judgment for their costs herein,” fixing the amount. The so-called findings are independent of the pleadings and the demands of the parties, and the decree is independent of the findings and gives the defendants all they asked. This decree is not an adjudication of any water rights, but only a judgment for costs in an action brought for the purpose of obtaining an injunction. Section 9367, Revised Codes of 1921, provides that: “The facts found and the conclusions of law must be separately stated, and judgment must thereupon be entered accordingly.” The supreme court of this state, in construing this section, clearly distinguished between a decree and the findings, wherein it states that “the language of that section makes it clear that the findings of fact and conclusions of law are not the judgment, but merely the foundation for the judgment.” (State ex. rel. Reser v. District Court, 53 Mont. 235, 163 Pac. 1149.) This holding of the supreme court is in accordance with the general rule of law. “A judgment does not reside in its recitals but in the mandatory portion of it.” (33 C. J. 1194.) “The decisions or find *352 ings of a court, referee, or committee do not constitute a judgment, but merely form the basis upon which the judgment is subsequently to be rendered. A. verdict is not a judgment, which may or may not be rendered upon it. The findings are not a judgment any more than is a verdict of a jury. Such findings or decisions amount only to an order for judgment.” (33 C. J. 1052.) “A finding of fact of the trial court cannot be considered an adjudication, or used as evidence, unless some other ground, can be found for its use than merely that it is a finding of the court.” (Mitchell v. Insley, 33 Kan. 654, 7 Pac. 201; Stethem v. Skinner, 11 Idaho, 374, 82 Pac. 451.) Section 10561, Revised Codes 1921,• provides “that only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.” (Sloan v. Byers, 37 Mont. 503, 97 Pac. 855.) The effect of the decrees in the° former actions having been determined, .it is necessary to look to the other evidence in order to ascertain what water rights the appellants established in themselves. W. W. Pennington, an engineer called by the appellants at the trial, testified that on June 18, 1925, he made measurements of the Miners’ ditch and of the McKay ditch at the head of the ditches, and that the Miners’ ditch had a capacity of 263 miner’s inches, and the McKay ditch of 558 miner’s inches, and that he could tell at that time what the size of the Miner’s ditch originally was. According to other evidence, these ditches were constructed more than fifty years prior to that time and had been used during that period. One of the appellants, Mrs. Swayze, testified that she lived in Bivens Gulch as early as 1870, but had no recollection beyond that time; that her father, Alexander McKay, was placer mining there at that time and had resided there since 1864; that he was using water through the Miners’ ditch in 1870 and had used some water through the Hofeker or Spencer-Stanley ditch, but she did not know when either of these ditches was constructed, nor testify as to the amount of water *353 which they would carry, except that the Hofeker ditch was a large ditch, and that in 1874 her father constructed the lower ditch, referred to as the McKay ditch; that in their placer mining they used all the water they could get; that they usually began placer mining in May and turned the water into the Miners’ ditch about May 15, and used the water from both ditches until the middle of July, when they turned it off of the McKay ditch, but continued to use water through the Miners’ ditch until the latter part of October; and that they usually carried the water over into Bivens Gulch from about the fifteenth day of May. She also testified that neither of these ditches had been ever enlarged. Mr. Frank Redfern, called as a witness on behalf of the appellants, testified that he had lived in that vicinity since 1864; that he was first up the Ramshorn Gulch in 1866 and hauled lumber from the Holter sawmill in that year; that the mill was operated by water power from water taken from Ramshorn; that the Miners’ ditch was not there until 1868 or 1869; that its carrying capacity was from 75 to 100 inches going over the ridge into Bivens; and that for the ten years that he was familiar with the ditch this condition continued. The respondents, in rebuttal, called Harry A. Teets, an engineer, who testified that he measured these ditches in August, 1923, in company with others, and that the McKay or lower ditch at a point 300 feet from the head had a carrying capacity of 280 inches of water, and that that was about the average size of the ditch; that he measured the Miners’ or upper ditch about fifty feet below where the ditch was taken out of Ramshorn gulch and found its carrying capacity to be 117 inches; that the ditch was then full of water; that he made another measurement a half mile from the head of the ditch and found it was there carrying sixty-two inches of water. Mr. Ray I. Haines accompanied Mr. Teets in his measurement and corroborates his testimony. Mr. Haines also testified that during the past twenty years he had observed these *354 ditches, and that the Miners’ ditch remained in the same condition. Mr. Dan T. Marshall, called in rebuttal by plaintiffs, testified that he had known .the Ramshorn for about forty years; that he first saw the Miners’ ditch in 1882; that he noticed it particularly in 1892; that at that time he did not think it would carry over 100 inches at the head; and that for twenty years the ditch had remained practically the same. There is not any evidence that the Hofeker ditch was used by the McKay interests prior to appropriations made by plaintiffs. There was very little conflict in the testimony of the witnesses as to the carrying capacity of these ditches or as to the date of their construction, the-amount of water actually used or the purposes for which used; neither was there any substantial conflict in the testimony as to the dates this water was used for placer mining purposes by the appealing defendants. The court awarded to the appealing defendants the right to use 150 inches of the waters of the south fork of Rams-horn Creek through the Miners’ ditch, from May 1 to November 1 of each year, and the right to use 300 inches “of the waters of Ramshorn Creek” through the McKay ditch, “beginning May 1 of each year and ending July 15,” the date of the first appropriation being May 15, 1868', and of the second appropriation May 15, 1874. The court undoubtedly has the right to fir both the amount of water and the date when the same may be used. “There is no difference in principle between appropriations of waters measured by time and those measured by volume.” (Barnes v. Sabron, 10 Nev. 217, 245; Santa Paula Waterworks v. Peralta, 113 Cal. 44, 45 Pac. 168.) The court in this ease gave to the appellants the maximum amount of water and the maximum time for its use which the evidence in the ease justified. This case comes quite clearly within the decision of this court in Smith v. Duff, 39 Mont. 382, 133 Am. St. Rep. 587, *355 102 Pac. 984. This latter decision is not in conflict with Conrow v. Huffine, 48 Mont. 437, 138 Pac. 1094. Intervener Peter J. Simonsen bases his right upon the claim stated in his petition that he is the owner of certain lands in Bivens Gulch which require irrigation for agricultural purposes; that he and his predecessors in interest had for more than sixty years diverted and used waters of Bivens Gulch therefor; that a portion of said waters had been derived from the ditches of the appealing defendants, which conveyed waters from Ramshorn Creek into Bivens Gulch; that he had entered into a contract with the appealing defendants for the purchase of the right from the defendants to use such waters so diverted, and claims that he has also acquired the right to such use by prescription. At the trial a deed bearing date January 16, 1925, was put in evidence, by the terms of which the appealing defendants sold to intervener an undivided one-half interest in the Miners’ ditch and the McKay ditch and the right to usé the same for irrigation and domestic purposes upon his lands in Bivens Gulch, making reference to the waters conveyed through these ditches from Ramshorn Creek. The grantors, however, reserved the right “to use said waters as heretofore for mining purposes, and also for development of power for manufacturing, for milling purposes, etc.” This deed was not delivered to intervener, but was held in escrow by the Sheridan State Bank, to be delivered to intervener upon his making the payments therein named. Intervener testified as to his ownership of the land; that it required irrigation; that he had a water right from the natural waters of Bivens Creek; that he used the waste waters from the McKay placer ground; and that about two-thirds of the waters used was this waste water. By this conveyance appealing defendants did not part with the right to use these waters or any of them for the original purpose of placer mining, but attempted to convey to intervener a right to the use of the waters when not so used by them. *356 Section 7097, Revised Codes of 1921, clearly makes it the duty of a prior appropriator to turn back into the stream all waters “over and above what is actually and necessarily used” by him. It is in evidence that the waters involved herein were originally used by Holter for operating a mill on Ramshorn Creek, and it has been determined that the predecessors in interest of Mrs. McNulty and Mrs. Swayze acquired the right to the use of these waters on May 15, 1868, and it also clearly appears that such acquisition was for placer mining purposes beyond the watershed of Ramshorn Creek, and that such waters have been used continuously for that purpose. Waters primarily belong in the watershed of their origin, if there is land therein which requires irrigation. In this case the waters were taken out to be used in the alien watershed, where and after being so used they could not return to the original stream either by percolation, seepage or otherwise; hence they were lost to the area in the original watershed. In this case, the right of the appealing defendants was acquired many years ago, and their right to the use of these waters in the alien watershed for placer mining purposes is not here controverted and has but an incidental bearing upon the question presented. Courts have many times sustained such foreign appropriation, and perhaps each case would be determined upon its own individual merit. It is sufficient here to say that the right to the use of this water for placer mining purposes by the appellants has been sustained, but it may be appropriate to remark that the burden placed upon the water should not be added to, to the detriment of appropriations made for irrigating lands within the area of the stream from which the water is diverted. The question of such appropriations has been heretofore before this court, but in an imperfect manner, and the following cases may be referred to: Spokane Ranch & Water Co. v. Beatty, 37 Mont. 342, 96 Pac. 727, 97 Pac. 838; Lokawich v. City *357 of Helena, 46 Mont. 575, 129 Pac. 1063; Carlson v. City of Helena, 43 Mont. 1, 114 Pac. 110. It is settled law in this state that an appropriator may change the place of diversion and change the use of the water (Thomas v. Ball, 66 Mont. 161, 213 Pac. 597), but such change cannot be made to the prejudice of subsequent appropriators (Head v. Hale, 38 Mont. 302; 100 Pac. 222; Carlson v. City of Helena, supra; Lokowich v. City of Helena, supra). But an appropriator cannot be permitted to use the water for the purpose for which it is appropriated, and then, in the interims when not continually used by him, sell the same for use by other persons. The supreme court of Montana, in considering this question, used this language: “It has been held that an appropriator of water may change the use of his appropriation from one purpose to another, (Meagher v. Hardenbrook, 11 Mont. (385) 381, 28 Pac. 451, and cases cited), but it has never been held in this state (nor are we cited to like holding elsewhere) that after an appropriator has used the water sufficiently to answer the purpose of his appropriation, he might take the waters of the stream remaining, which he could not use for the purpose of his appropriation, and sell it to other parties, thereby depriving subsequent appropriators of their right to use the same.” (Creek v. Bozeman Waterworks Co., 15 Mont. 121, 131, 38 Pac. 459; see, also, Tucker v. Missoula Light & Water Co., 77 Mont. 91, 250 Pac. 11.) After the appealing defendants had used these waters for placer mining purposes and the water had drained below their land into Bivens Gulch, their jurisdiction over it ceased; it had subserved the purpose of their appropriation, and, as it could not drain back into the stream from which it was taken, it became waste, fugitive and vagrant water and subject to be treated as such, and the appropriators had no longer any jurisdiction over it or ownership in it. They did not own the corpus of the water; hence they had nothing to sell, and their attempted sale of the water or the right to use the same was wholly void. (Eddy v. Simpson , 3 Cal. 249, 58 Am. Dec. *358 408; Kelly v. Natoma Water Co., 6 Cal. 105; Hoffman v. Stone, 7 Cal. 46; Schulz v. Sweeny, 19 Nev. 359, 3 Am. St. Rep. 888, 11 Pac. 253; Clemens Horst Co. v. New Blue Mining Co., 177 Cal. 631, 171 Pac. 417; Stepp v. Williams, 52 Cal. App. 237, 198 Pac. 661; Hagerman Irr. Co. v. East Grand Plains Drainage Dist., 25 N. M. 649, 187 Pac. 555; Elgin v. Weatherstone, 123 Wash. 429, 212 Pac. 562; 2 Wiel on Water Rights, 3d ed., p. 36 et seq.) “Where use of water is abandoned and resumed, use vests from date of resumption.” (O’Shea v. Doty, 68 Mont. 316, 218 Pac. 658.) The purchase by intervener of an interest in the appellants’ ditches does not, of itself, make him a prior appropriator of the water. Furthermore, if the intervener bases Ms right to the use of these waters upon his deed of purchase, then such right could not be earlier than the date of the deed, which is January 16, 1925, for it is an additional burden on the use of this water. In Featherman v. Hennessy, 43 Mont. 310, at page 317, 115 Pac. 983, 986, an appropriation of water had been made for power purposes in 1893. At a later date the appropriator changed the use of a portion of this water to agricultural purposes. The court, in determining the matter, said: “The use of ninety inches for agricultural purposes was found to have been initiated on April 1, 1905. This was a change of the original use and resulted in the consumption of the quantity sp diverted to the new use, and therefore amounted pro tanto to a new appropriation * * ° [so] that the right to use this amount for this purpose must bear the date at which the change was made.” Conceding that the evidence of intervener shows use for the period required for prescription, we then have the proposition: “In order to constitute adverse possession of water, the burden is upon the claimant to show that his use of the water deprived the prior appropriators of water at times when such prior appropriators actually needed the water; and use does not become adverse until it interferes with the use thereof by *359 the prior appropriators, and proof merely that the claimant used water and claimed the right to use it is no proof whatever of adverse use.” (St. Onge v. Blakely, 76 Mont. 1, at page 16, 215 Pac. 532; Hays v. De Atley, 65 Mont. 558, 212 Pac. 296.) “That the right to the use of water for irrigation or other lawful purposes may be lost by one and acquired by another by prescription is settled beyond controversy in this jurisdiction.” (Ve rwolf v. Low Line Irr. Co., 70 Mont. 570, at page 577, 227 Pac. 68, 70.) There is not any evidence in this record tending to show that appellants used any of this water when respondents required it, except at limited times for a few years prior to the commencement of this action, and falling far short of the period required for adverse usage or prescription. We have critically examined this record and find no reversible error therein and the judgment and decree of the district is affirmed. Affirmed. Associate Justices Myees, Stark, Matthews and Galen concur.