Harwood, J.
— The main question of law involved in this case may be stated by the following propositions: Where several individuals, in succession, have, pursuant to the provisions of the laws of this state regarding water rights, appropriated and acquired right to use the waters of a creek for certain beneficial purposes, such as the irrigation of their respective farms, may the first appropriator, or his successor, after subsequent appropriations have been acquired, not only use the waters of the creek by him appropriated for his individual uses, but, in addition, after his individual use has been sufficed, convey the waters of such creek entirely away from its usual channel, and sell the same to the inhabitants of a city for their use, and thereby, without recompense, deprive the subsequent appropriators of the use of the waters of said creek, which they had enjoyed alone with the first appropriator’s former use of it? The answer to this question must be in the negative. The right acquired by an appropriator in and to [129]*129tlie waters of a natural stream is not ownership of a running volume of the dimensions claimed, like the individual ownership of a chattel, so that it may be transferred corporally and carried away, but the right acquired by the appropriator is the right to use a certain quantity for necessary and beneficial purposes, such as supplying household needs, and the carrying on of some useful industry; and, when such want is supplied, or the use is subserved, all the rest of the creek, and all that returns thereto after such use, is subject to appropriation and use by another for some” beneficial purpose. The same volume of water may, therefore, in its flow down the creek, supply many persons, even though the first appropriator claims the whole volume, and can, at times, or even constantly, use the same for some industrial purpose, because such use does not usually swallow it, but leaves it available to others. But by such an appropriation the first appropriator does not acquire a preemption of the whole creek, so that he, or his successor, may, after enjoying the use of it for some beneficial purpose, convey the creek away and cut off subsequent appropriators. Therefore a subsequent right to use the same water, or so much of it as returns to the creek, and to use the waters of the creek when the first is not using the same, may be acquired. And therefore the trial court proceeded upon an erroneous view or theory of the law governing water rights, and the relation of various appropriations to one another, in holding that plaintiff, or her predecessor, could not acquire by appropriation any right to the use of the waters of said creek arising and flowing therein above defendant’s ditches. It is well understood that a creek in these mountainous regions, flowing a volume of two hundred and fifty inches, would suffice to irrigate more than one small farm; not only so, that there are considerable periods when a farmer does not irrigate his crops, while the water in an adjacent stream, which he is entitled to use, so far as his needs demand, flows on forever, and is subject to the use of others.
It appears that Lymañ settled upon the creek in question in 1864, acquired one hundred and sixty acres of land, and appropriated the waters of said creek to irrigate the same, to which right this defendant company has succeeded. Follow[130]*130ing the settlement and appropriation by Lyman, for the purpose mentioned, plaintiff’s husband acquired agricultural land, situate upon the banks of said creek, and likewise appropriated the water of said creek to irrigate his land. When the second appropriator came and viewed the situation, even conceding that Lyman had appropriated all, and could use all, of the waters of said creek at times for the irrigation of his land, it was very plain, considering the laws of nature and the purpose for which Lyman was using said water, that there was sufficient opportunity for plaintiff’s husband to irrigate a farm, notwithstanding Lyman’s appropriation. Under these circumstances plaintifi’’s husband acquired a right to the use of said waters subsequent and subject to that of Lyman. But it came to pass, in the course of time, that Lyman sold his land, with his water right appurtenant thereto, to defendant company, and the company appears to have acquired some lands in addition to that owned by Lyman. But, in addition to the irrigation of its land, as successor to the rights of Lyman, the company, about 1889, engaged in the business of supplying the inhabitants of the city of Bozeman with water for their use, and to that end conducted the water of said creek into a reservoir, and conveyed it thence to said city. And defendant company claims the right to so use the. water, based upon Lyman’s appropriation, which was prior to that of plaintiff’s husband. On the same theory the first appropriator of the waters of a creek might use the same sufficiently for his own purposes, and then, instead of letting it go to the next subsequent appropriator, and so on in succession, he might sell the water to some individual who could not acquire any right to it by appropriation, and such purchaser would thereby acquire the water over the subsequent appropriator. For instance, if a creek supplied sufficient to irrigate five farms, and the first, or first and second, appropriators had claimed enough to comprise the whole volume of the creek, instead of allowing the water, after their use, to pass on to the three subsequent appropriators, they might sell it out entirely to a sixth party desiring to use such water; and whereas the farms of the third, fourth, and fifth appropriators had hitherto been sufficiently irrigated, after the first and second had used sufficient of the [131]*131waters of the creek for their purposes, it turns out that the first and second could sell and convey the water, depriving the third, fourth, and fifth entirely thereof. Under such a theory the early appropriators, whose claims are sufficient to include the volume of a flowing stream, instead of holding a usufructuai'y relation to it, would hold corporeal ownership of it, with power to control and dispose of it very much like a chattel.
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. 381, 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, but that is what defendant has accomplished in this case. Defendant has not changed the use for which the water in question was first appropriated by Lyman from that of irrigating agricultural lands to mining or operating a mill, or the like, leaving the water, after such use, to go on to subsequent appropriators in succession; but defendant company , has assumed to take the water of said creek, over and above that necessary to irrigate its lands, and sell the same to others who had no claim by appropriation thereto, to wit, to the inhabitants of the city of Bozeman, thereby depriving the next subsequent appropriator entirely of the use of said water. This defendant cannot lawfully do, without acquiring plaintiff’s right therein.
Free access — add to your briefcase to read the full text and ask questions with AI
Harwood, J.
— The main question of law involved in this case may be stated by the following propositions: Where several individuals, in succession, have, pursuant to the provisions of the laws of this state regarding water rights, appropriated and acquired right to use the waters of a creek for certain beneficial purposes, such as the irrigation of their respective farms, may the first appropriator, or his successor, after subsequent appropriations have been acquired, not only use the waters of the creek by him appropriated for his individual uses, but, in addition, after his individual use has been sufficed, convey the waters of such creek entirely away from its usual channel, and sell the same to the inhabitants of a city for their use, and thereby, without recompense, deprive the subsequent appropriators of the use of the waters of said creek, which they had enjoyed alone with the first appropriator’s former use of it? The answer to this question must be in the negative. The right acquired by an appropriator in and to [129]*129tlie waters of a natural stream is not ownership of a running volume of the dimensions claimed, like the individual ownership of a chattel, so that it may be transferred corporally and carried away, but the right acquired by the appropriator is the right to use a certain quantity for necessary and beneficial purposes, such as supplying household needs, and the carrying on of some useful industry; and, when such want is supplied, or the use is subserved, all the rest of the creek, and all that returns thereto after such use, is subject to appropriation and use by another for some” beneficial purpose. The same volume of water may, therefore, in its flow down the creek, supply many persons, even though the first appropriator claims the whole volume, and can, at times, or even constantly, use the same for some industrial purpose, because such use does not usually swallow it, but leaves it available to others. But by such an appropriation the first appropriator does not acquire a preemption of the whole creek, so that he, or his successor, may, after enjoying the use of it for some beneficial purpose, convey the creek away and cut off subsequent appropriators. Therefore a subsequent right to use the same water, or so much of it as returns to the creek, and to use the waters of the creek when the first is not using the same, may be acquired. And therefore the trial court proceeded upon an erroneous view or theory of the law governing water rights, and the relation of various appropriations to one another, in holding that plaintiff, or her predecessor, could not acquire by appropriation any right to the use of the waters of said creek arising and flowing therein above defendant’s ditches. It is well understood that a creek in these mountainous regions, flowing a volume of two hundred and fifty inches, would suffice to irrigate more than one small farm; not only so, that there are considerable periods when a farmer does not irrigate his crops, while the water in an adjacent stream, which he is entitled to use, so far as his needs demand, flows on forever, and is subject to the use of others.
It appears that Lymañ settled upon the creek in question in 1864, acquired one hundred and sixty acres of land, and appropriated the waters of said creek to irrigate the same, to which right this defendant company has succeeded. Follow[130]*130ing the settlement and appropriation by Lyman, for the purpose mentioned, plaintiff’s husband acquired agricultural land, situate upon the banks of said creek, and likewise appropriated the water of said creek to irrigate his land. When the second appropriator came and viewed the situation, even conceding that Lyman had appropriated all, and could use all, of the waters of said creek at times for the irrigation of his land, it was very plain, considering the laws of nature and the purpose for which Lyman was using said water, that there was sufficient opportunity for plaintiff’s husband to irrigate a farm, notwithstanding Lyman’s appropriation. Under these circumstances plaintifi’’s husband acquired a right to the use of said waters subsequent and subject to that of Lyman. But it came to pass, in the course of time, that Lyman sold his land, with his water right appurtenant thereto, to defendant company, and the company appears to have acquired some lands in addition to that owned by Lyman. But, in addition to the irrigation of its land, as successor to the rights of Lyman, the company, about 1889, engaged in the business of supplying the inhabitants of the city of Bozeman with water for their use, and to that end conducted the water of said creek into a reservoir, and conveyed it thence to said city. And defendant company claims the right to so use the. water, based upon Lyman’s appropriation, which was prior to that of plaintiff’s husband. On the same theory the first appropriator of the waters of a creek might use the same sufficiently for his own purposes, and then, instead of letting it go to the next subsequent appropriator, and so on in succession, he might sell the water to some individual who could not acquire any right to it by appropriation, and such purchaser would thereby acquire the water over the subsequent appropriator. For instance, if a creek supplied sufficient to irrigate five farms, and the first, or first and second, appropriators had claimed enough to comprise the whole volume of the creek, instead of allowing the water, after their use, to pass on to the three subsequent appropriators, they might sell it out entirely to a sixth party desiring to use such water; and whereas the farms of the third, fourth, and fifth appropriators had hitherto been sufficiently irrigated, after the first and second had used sufficient of the [131]*131waters of the creek for their purposes, it turns out that the first and second could sell and convey the water, depriving the third, fourth, and fifth entirely thereof. Under such a theory the early appropriators, whose claims are sufficient to include the volume of a flowing stream, instead of holding a usufructuai'y relation to it, would hold corporeal ownership of it, with power to control and dispose of it very much like a chattel.
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. 381, 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, but that is what defendant has accomplished in this case. Defendant has not changed the use for which the water in question was first appropriated by Lyman from that of irrigating agricultural lands to mining or operating a mill, or the like, leaving the water, after such use, to go on to subsequent appropriators in succession; but defendant company , has assumed to take the water of said creek, over and above that necessary to irrigate its lands, and sell the same to others who had no claim by appropriation thereto, to wit, to the inhabitants of the city of Bozeman, thereby depriving the next subsequent appropriator entirely of the use of said water. This defendant cannot lawfully do, without acquiring plaintiff’s right therein.
There is a finding of the trial court that plaintiff’s husband, in the summer of 1884, “dug a ditch tapping Lyman creek, of sufficient size and capacity to carry thirty-nine inches of water, measured according to the rule prescribed by statute,” which finding is excepted to as not supported by the evidence. This finding is ambiguous. It may be entirely true and warranted by the evidence under one construction, and erroneous and unwarranted under another, either of which interpretations may be insisted on with about equal emphasis. Plain[132]*132tiff alleges appropriation of one hundred inches of the water of said creek in 1884, and also alleges in her complaint the construction of a ditch, of certain dimensions stated, whereby she*diverted said water for the various purposes alleged; and according to these allegations said ditch is capable of carrying more than one hundred inches of water. Those allegations are entirely undenied b.y defendant’s answer. This state of facts, thus admitted in the pleadings, may or may not be contradicted by the finding mentioned. That depends on the interpretation given to it. A ditch of the capacity admitted by the pleadings is, of course, “ of sufficient size and capacity to carry thirty-nine inches of water” as found. But if the finding is to be understood as affirming that said ditch is only of sufficient capacity to carry thirty-nine inches of water, the effect of it would be very material, because her appropriation would be limited to the capacity of her ditch or ditches for diversion of said water. Notwithstanding the admissions of the pleadings as to the capacity of plaintiff’s ditch, there was evidence introduced on that subject. Several witnesses were called by plaintiff, describing the ditches whereby plaintiff and her husband, as her predecessor in interest, had diverted the waters of said creek, and their testimony supports the allegations of the complaint on that point, although such evidence was unnecessary. But one witness called by plaintiff stated that op a certain occasion he could only flow thirty-nine inches of water through plaintiff’s ditch. He stated that on that occasion he was employed by defendant company, or its agent, to make such test of the capacity of plaintiff’s ditch, and turned water therein for that purpose. He does not state the dimensions of plaintiff’s ditch, nor did he contradict the allegations of her complaint or her other witnesses on that point, except in so far as his testimony, by implication, contradicts theirs. Moreover, his testimony might be true, and the allegations of the complaint, which were undenied, and the testimony of other witnesses on that point, might also be true; for the ditch, although generally of a capacity sufficient to carry one hundred inches of water, as shown by the dimensions alleged in the complaint, may, from some local defect or lack of repair on the occasion when said witness turned water therein, have only, carried [133]*133thirty-nine inches. So this witness’s testimony might be true and yet furnish no real or just ground for finding that plaintiffs means of diversion was only of the capacity of thirty-nine inches, if that is to be the construction put upon such finding. At all events, as the record stands, considering the admission of the pleading on that point, we regard the finding unwarranted if construed to mean that plaintiff’s ditch was only of the capacity sufficient to conduct thirty-nine inches.
For the foregoing reasons the judgment should be reversed, and the cause remanded for new trial, and an order of this court will be entered accordingly.
Beversed.
PembertoN, C. J., and De Witt, J., concur.