MR. JUSTICE ADAIR
delivered the opinion of the court.
This is an appeal from a judgment for plaintiff involving the use of a stream of fresh running water in the water shed of Dempsey Creek in Powell County, Montana.
The complaint originally set forth two causes of action. In the first cause of action plaintiff based his claim to the prior use of 150 miner’s inches of water by
right of appropriation.
In the second cause of action plaintiff based his claim of right by
adverse use
for more than the statutory period. At the trial, by motion of defendants, the plaintiff was by the court required to elect upon which cause of action he would stand. Plaintiff elected to stand solely upon his claim of right
by appropriation
and he then and there abandoned his claim of right
by adverse use.
No error is assigned in the action of the trial court ordering such election, hence the question as to plaintiff’s claimed right by
adverse use
is entirely eliminated from the case. To prevail herein the plaintiff’s evidence must show a prior right in him
by appropriation
to the use of the waters claimed.
Dempsey Creek rises on the eastern slope of a north and south mountain range in Powell County, and flows thence in a gen
erally easterly direction for a distance of about 18 or 20 miles where it empties into the Deer Lodge River. The land along Dempsey Creek and in the water shed thereof is owned by various parties, who, during the irrigating season divert the water from Dempsey Creek and use it on their land. Such waters are diverted directly from Dempsey Creek by means of numerous ditches which tap the creek. Commencing about 12 miles upstream from the mouth, these ditches tap the creek at various places between such upper diversion point and the mouth of the creek.
Dempsey Creek flows in a northeasterly direction through the “William Walker Ranch” comprising 253 acres described as the N% of the NW¼; the SE¼ of the NW¼; the NE½ of the SW¼; the W½ of the NE%; and the NW% of the SE% of section 5, T. 6 N., R. 9 W. less a certain 27 acre strip sold off the east end thereof. The original owner of the ranch was William Walker, who occupied it from 1866 to 1887, when he conveyed to Herman Johnson, who owned and occupied same until 1902, when he conveyed the ranch to the plaintiff herein, Max Kramer, who is the present owner.
On September 19, 1891, Peter Johnson, who then owned the Michael Grace Ranch to the west of the William Walker Ranch, commenced in the district court Cause No. 404 against 21 defendants including Herman Johnson who then owned the William Walker Ranch, for the purpose of adjudicating the rights and priorities of all the parties to said suit in and to the waters of Dempsey Creek.
On April 24, 1892, a decree was made and rendered in said Cause No. 404 wherein the district court disposed of some 21 separate water rights specifying therein the amount each of the parties was to receive and also their order of priority. The plaintiff Max Kramer’s immediate predecessor, Herman Johnson, was dissatisfied with the disposition of the waters of Dempsey Creek as set forth in said decree and appealed to this court. (See
Johnson
v.
Bielenberg,
14 Mont. 506, 37 Pac. 12.) As finally adjudicated by the decree in Cause No. 404, there was
awarded to Herman Johnson for use on the “William Walker Ranch”: (a) right No. 6 of 50 inches as of 1867; (b) right No. 11 of 40 inches as of 1871; and (c) right No. 21 of 110 inches as of 1891, the later being junior to all the other rights decreed in the action.
The doctrine of
res adjudicata
applies to water cases. The final decree of 1892 made in Cause No. 404 is binding and conclusive between all the parties to the suit and their privies and successors in interest, as to all matters adjudicated therein and as to all issues which could have been properly raised irrespective of whether the particular matter was in fact litigated.
(Bieser v. Stoddard,
73 Colo. 554, 216 Pac. 707;
Campbell
v.
Wyoming Development Co.,
55 Wyo. 347, 100 Pac. (2d) 124, 102 Pac. (2d) 745. See also
Lokowich
v.
City of Helena,
46 Mont. 575, 129 Pac. 1063;
Howell
v.
Bent,
48 Mont. 268, 137 Pac. 49;
In re Smith’s Estate,
60 Mont. 276, 199 Pac. 696;
Zosel
v.
Kohrs,
72 Mont. 564, 234 Pac. 1089;
State ex rel. Golden Valley Co.
v.
District Court,
75 Mont. 122, 242 Pac. 421;
Blaser
v.
Clinton Irr. Dist.,
100 Mont. 459, 53 Pac. (2d) 1141;
State ex rel. Sullivan
v.
School Dist. No.
1, 100 Mont. 468, 50 Pac. (2d) 252;
Swaim
v.
Redeen,
101 Mont. 521, 55 Pac. (2d) 1;
State ex rel. Silve
v.
District Court,
105 Mont. 106, 69 Pac. (2d) 672.)
On December 20, 1935, the plaintiff Max Kramer commenced the present action against some 44 defendants, seeking to have the court adjudge him to have a first and prior right to the use, for irrigating purposes on the “William Walker Ranch”, of 150 miner’s inches of the waters of a certain stream of fresh running water, the natural channel of which connects and joins with the main and natural channel of Dempsey Creek at a point about two or three miles above the point where Dempsey Creek empties into the Deer Lodge River. The plaintiff Max Kramer and each of the 44 defendants in the instant suit are each and all successors in interest to the original parties to Cause No. 404 wherein judgment was made and filed almost 43 years before the present suit was commenced.
When the appropriators of the waters of Dempsey Creek ap
pealed to the district court for an adjudication of their rights in Cause No. 404, they appealed to the public force and the decision rendered in that cause, unless and until regularly modified, remains for all time. The rights given each litigant under the decree are property rights upon which his security depends. In the decree the court gave to the parties thereto the right to use specified quantities of water as of dates fixed. It is the duty of the court to protect the rights of the litigants which were found and determined by the provisions of that decree. The decree is not merely a basis for a new procession of water suits.
(Gans & Klein Investment Co.
v.
Sanford,
91 Mont. 512, at page 520, 8 Pac. (2d) 808.) The decree in Cause No. 404 is just as operative today as it was on the day in April, 1892 that it was rendered. The decree specifies the exact
maximum quantity
in miner’s inches of water that each litigant should be entitled to use. It sets forth
the order
in which the respective litigants were to use the waters so allotted to them. The decree requires that each litigant “must make reasonable use of the water allotted to him and that
said waters when not so used, or the surplus thereof, must he turned in to the said Dempsey Creek.”
Thus, by its express terms, does the decree require that, after the litigants have made reasonable use of the water up to the maximum amount allotted to each and in the order named in the decree, all of the waters not so used and all of the surplus of such waters “must be turned in to the said Dempsey Creek” to the end that same shall be available for the use of the other decreed users.
The decree also contained an injunctive provision which reads: “It is further ordered and adjudged that the defendants, and each of them, be and they
are hereby enjoined and restrained forever from diverting or interfering with the waters of said Dempsey Creek,
except that each of said defendants and the plaintiff may, in the order named, make reasonable use thereof in the amounts named and for the purposes mentioned, and
until each has used the water in the manner and amounts mentioned the plaintiff and each of the defendants is restrained from
using and diverting the same.”
Since each party to the instant suit is a successor in interest to some party in Cause No. 404, the decree rendered in that action in 1892 fixes not only the rights of the plaintiff Max Kramer but it likewise fixes the rights of each and all defendants in the present action in or to the use of the waters of Dempsey Creek and its tributaries.
The complaint herein alleges: ‘ ‘ That on or about the first day of April, 1872,
by means of dams and ditches, constructed to and sufficient to, divert said water from said slough
to carry the same to and upon the lands of the plaintiff above described, for the purpose of irrigating said lands, plaintiff and his predecessors in interest duly appropriated of the waters of said slough, one hundred fifty (150) miner’s inches of water, * * *
and diverted said waters from said slough,
and flowed the same to and upon the lands above described, and there used said waters for irrigation, domestic and other useful purposes, and that the plaintiff and his predecessors in interest, commencing with on or about April 1st, 1872, have used said waters so appropriated, and all thereof, during the irrigating season each year for the irrigation of the said lands of the plaintiff, and that plaintiff is now using said waters for that purpose, and that all of said one hundred fifty (150) miner’s inches of water so appropriated is and are, and at all times herein mentioned were, necessary for the proper irrigation of said lands.”
The complaint also alleges: “That while said slough flows towards Dempsey Creek, also wholly situate in Powell County, State of Montana, said slough is not now, and never has been, a tributary of said Dempsey Creek.”
The answers of the appealing defendants each and all denied the allegation that, “said slough is not now, and never has been, a tributary of said Dempsey Creek.” Thus was the burden cast upon the plaintiff Max Kramer to establish such controverted allegation or fail in his action. If, on September 19, 1891 when Cause No. 404 was commenced, the “unnamed stream” or “slough” then fed or contributed to the waters of Dempsey Creek, then the decree thereafter and in April, 1892
rendered therein concludes the plaintiff Max Kramer from here asserting more than 40 years later, that he has a first and prior right by appropriation as of 1872 to the use of the waters flowing in such tributary.
(Ryan
v.
Quinlan,
45 Mont. 521, at page 531, 124 Pac. 512, at page 515.)
The chief issue, as between the appealing defendants and the plaintiff Max Kramer, therefore, is whether the “unnamed stream” or “slough” is a tributary of Dempsey Creek.
A tributary is a stream feeding or contributing water to a larger stream or lake.
The complaint alleges: “That said slough is now, and at all times herein mentioned has been, a natural stream of fresh and running water, flowing in an easterly direction, in a regular and defined channel with regular and defined beds and banks, * * * to the point or points, or place or places thereon, where the defendant does now divert, and at all times hereinafter mentioned he and his predecessors in interest have diverted the waters flowing in said slough to and into his ditch and ditches, as hereinafter more particularly described, * * *.” At and prior to the date of the decree of 1892, this so-called “unnamed stream” had and it still has its source in the SE]4 of Section 1, T. 6 N., R. 10 W. From thence it flowed easterly through lands then owned by the Quinlans who were parties defendant in the original water suit No. 404 to a point near the southwest corner of the SE1/4 of the NE1/4 of section 6, T. 6 N., R. 9 W. where, at a point about 100 feet easterly from the county road, which runs northerly and southerly on the dividing line between the east half and the west half of said section 6, its natural channel joined the main channel of Dempsey Creek, the two channels describing a narrow letter V the base of which Y corresponds with the junction point of the “unnamed stream” with Dempsey Creek. The ditches of most of the adjudicated users of the waters of Dempsey Creek take their waters therefrom at points above the junction of the “unnamed stream” with Dempsey Creek but other adjudicated users have ditches, including ditches Nos. 10, 11, 13, 14, 16 and 17, which
tap Dempsey Creek below said junction point. These downstream users must depend upon the waters flowing in Dempsey Creek below the junction point and their rights have been, are and will be affected by any upstream use of the waters which prevent their return to the creek or which diminish their quantity. The source of supply for the so-called “unnamed stream” is Dempsey Creek water diverted therefrom by the upstream ditches of upstream users. Some of those ditches discharge Dempsey Creek water directly into the slough while other ditches conduct Dempsey Creek waters to agricultural lands above the slough from which lands the waste, run off or surplus waters drain, flow, drop or seep into the slough in their downward course as they flow back towards Dempsey Creek. Were it not for the “dams and ditches constructed to and sufficient to, divert said water from said slough” which plaintiff affirmatively pleads have been constructed by him and his predecessors in interest, the waters so running in the slough would course through the natural channel thereof down to the lower or easterly end of the slough where they would be discharged into Dempsey Creek. There would be no other place for these 150 miner’s inches of water running in the slough to go except into Dempsey Creek were it not for the dams and ditches of the plaintiff which divert the water from the slough and away from Dempsey Creek as is shown, not only by the testimony adduced at the trial, but also by the map which plaintiff introduced in evidence as his exhibit 1, which map is here reproduced:
The slope of the land to the north of Dempsey Creek near the head of the slough is naturally to the north towards the slough. The plaintiff Max Kramer testified: “The creek has no outlet that way towards the slough except through ditches but them are good water rights.
They are the first and they have a good big flow. The more they have got the more is in the slough. That is what formed the slough.”
The witness Mike Lowry lived on the Quinlan brothers’ ranch at the upper end'of the slough from June 11, 1890 to the spring of 1925. He testified that after the adjudication of Dempsey Creek in 1892, he observed an increase in the flow of the water in the slough and that there were times when it was very high with
“drop water.”
He also testified:
“Q. And what do you mean ‘drop water’? A. Irrigation water that drops into the slough.
“Q. And that would come from the lands above the slough? A. Yes, sir. * * *
“Q. When you first came to live in the valley and worked at Quinlan ranch was there enough water in Quinlan Slough to be used for irrigation? A. No, not to amount to anything.
“Q. How much would you say? A. Well, after the drop water quit coming in there was very little, possibly 14 or 20 inches.
“Q. Was there much drop water coming in before Dempsey Creek was adjudicated? A. No.
“Q. Do you know why of your own knowledge the adjudication of Dempsey Creek increased the flow of Quinlan Slough? A. There was more farming done and more water came down. The ranchers near the mouth had the advantage and used it there. There was no way to stop them. It had never been proven who the water belonged to before it was adjudicated.
‘ ‘ Q. After the creek was adjudicated was the water used lower down? A. It came where it belonged.
‘ ‘ Q. And closer to the slough ? A. The rights came down along the creek as they were, the early rights came down and naturally people irrigated more. I know Quinlans the first year I was
there in 1890 put up about 40 tons of hay on 6 or 7 acres of land. The only hay was between the creek and the slough on about 100 acres of land.
“Q. And later did they put more hay up? A. Yes, after the water was adjudicated and everybody got their water they did. The No. 1 right on the creek, 2/3 of No. 4, 192% at No. 8, 27% at No. 4, 105 at 1, that water was all spread out on Quinlan land.
“Q. Above the head of the slough? A. And south of the slough.
“Q. In your observation of the slough during the time you lived near it did you ever observe any water in the form of springs raising in the slough? A. Yes, sir.
“Q. Where were those springs located? A. One was right below the forks of the slough below the line fence.
“ Q. The line fence is on the meridian line between Section 6 and 1? A. Yes.
“Q. And where else did the water raise? A. Above; that is, some raised — it is hard to say they were springs — it was oozing out along the bank in different places. One place was a spring and later opened up and you could see water boiling right out, in fact we used some of it for house use.
“Q. In Section 1? A. In Section 1 below the guide meridian line.
“Q. Do you know if any part of the slough raises outside of Section 1; that is, outside of that portion that may arise in Section 6 ? A. Well that is above the meridian line in the Quinlan field as the map shows where the slough is.
‘ ‘ Q. Referring to the map Exhibit 1, I will ask you if the map clearly shows the head of Quinlan Slough. The map showing the head of Quinlan Slough is located in the southeast quarter of Section 1. A. That is the north fork. They both head in that quarter section.
“Q. Both forks of the slough head in the southeast quarter of Section 1? A. Yes.
'‘ Q. At any rate on the place marked on the map as being the head of the slough? A. Yes.”
For many years the county road crossed Dempsey Creek by means of a wooden bridge and, about 50 to 80 feet northerly therefrom, there was a second wooden bridge which spanned the slough. At the time of the commencement of Cause No. 404 in 1891 and continuing up to 1911, the natural channel of the slough ran into and joined that of Dempsey Creek about 100 feet below, i. e. easterly from said wooden bridges.
The plaintiff Max Kramer who acquired the ranch in 1902 testified: “When I came on the place first the creek and slough didn’t connect till down below the road.”
Plaintiff’s first witness, George Johnson, Sr., had been familiar with the creek, slough and wooden bridges since 1872. He testified that he remembered frequently seeing streams of water running in both the slough and the creek and that the streams came together and united “to the east of the road.”
Plaintiff’s second witness, Henry Hendrickson, was familiar with both the slough and the creek. He had worked on the county road in 1893 or 1894 at which time his father was county road supervisor. He testified that the contour of the land was such that there was no other place for the water running in the slough to go except to flow into Dempsey Creek were it not for a ditch constructed by Herman Johnson in 1900 (eight years after the 1892 decree), which tapped the slough about 100 feet above its junction with the .creek and a few feet below the wooden bridge, spanning the slough at the county road. This new slough ditch was of a size sufficient to carry 150 to 200 inches of water and all the water which flows through its intake runs down the natural channel of the slough to within about 100 feet of Dempsey Creek where it is diverted into the head of the new slough ditch.
Plaintiff’s third witness was his son-in-law, Frank Beck, who testified that the channel of the slough runs into the channel of Dempsey Creek and ‘
‘
that Quinlan Slough has no other place to go except join with Dempsey Creek.”
Plaintiff’s fourth witness, Glen Foley, was water commissioner on Dempsey Creek in 1914, 1915 and 1927. He testified
that when he first saw the slough its natural channel led to Dempsey Creek through which the "water would go into the creek as in its natural course” and that when not diverted through plaintiff’s ditches the waters of the two streams would come together about at the road.
Plaintiff’s fifth witness, Ben Goldie, had been a resident of the Deer Lodge Valley since 1878. He was road supervisor in 1916. In July of that year he rebuilt the two wooden bridges spanning the creek and the slough at the county road. He testified that water was flowing in the streams and that it was necessary to wear boots when rebuilding the bridges.
The nest witness, W. P. Johnson, was born near the slough in 1877 and had since resided there. He testified that in his boyhood days water flowed in the slough "the year through in those years” and that the slough and the creek came together a short distance below the county road and that below such junction "they were one stream.”
The witness Albert Beck was the water commissioner on Dempsey Creek in 1936, 1939 and 1940. He also owns a water right out of the creek adjudicated by the 1892 decree in Cause No. 404. He testified:
"Q. Well now for instance in 1938 when there was a supply of water running in Quinlan Slough and as to your own right No. 11 if the Quinlan Slough water had not been diverted into ditches out of Quinlan Slough but had been allowed to flow down the channel of Quinlan Slough to the junction of Dempsey that water would have been available to supply your No. 11 right in 1938 would it not? A. Yes, sir, it would have.
"Q. Or it would have been available to supply any other right in order of priority below the junction of Quinlan Slough and Dempsey Creek? A. Yes, it would.”
Plaintiff’s immediate predecessor, Herman Johnson, testified:
"Q. This Quinlan Slough was in the Pat Quinlan field, was it? A. It was in his pasture.
"Q. That runs down into Dempsey Creek, doesn’t it? A. No. It runs — my ditch runs past the Pat Quinlan house.
“Q. Suppose your ditch, were not there at all. The slough water would run along down into Dempsey Creek, wouldn’t it? A. Of course, if there wasn’t any ditch there it might.
“Q. In case of rainfall, when it was raining hard, the overflow of the slough would run into Dempsey Creek? A. Yes, I guess it would.
“Q. Above the road? A. Yes.
“Q. That is, before the place above the place where the old Yellowstone Trail crossed Dempsey Creek— A. Yes.
‘ ‘ Q. —the slough and the creek came together up there in the bushes? A. Yes.
“Q. There is a channel from the slough down to the creek, isn’t there? A. Yes.”
Mike Lowry testified that the slough joined Dempsey Creek “below the road or right at the road.” Frank Mero testified that, when not diverted therefrom by irrigation ditches, the water flowing naturally down the slough would empty into Dempsey Creek. Claude N. Bielenberg testified the slough joins Dempsey Creek “Right there on the road, Yellowstone Trail there. ’ ’
Pacific Normandin and Edward Perkins both testified the slough empties into Dempsey Creek.
When William Walker had the ranch he had a ditch which tapped the south bank of Dempsey Creek at a point near the northwest corner of the SE¼ of the NE¼ of Sec. 6, T. 6 N., R. 9 W. which ran thence in an easterly direction through the NE¼ of Sec. 5, T. 6 N., R. 9 W. to his ranch house and buildings located about a quarter of a mile north of the center of said Section 5. This ditch was known as the “house ditch.” It was capable of carrying about 50 miner’s inches of water. The only other ditch which Walker had was the ditch which he dug in 1872. This ditch tapped the north bank of the slough near the center of Sec. 6, T. 6 N., R. 9 W. and ran thence in a northeasterly direction* through Patrick Quinlan’s land and Michael Grace’s farm to the Walker lands lying to the north of Dempsey Creek. This was all the land which Walker irrigated as he did
no irrigating whatever on his lands lying south of the creek. In the sworn notice of appropriation which he recorded in 1874, Walker swore that by means of the ditch which he constructed to the slough in 1872 he appropriated and conveyed therein
the waters of Dempsey Creek
claiming “a valid right to the use and benefit of 150 inches of
the waters of Dempsey Creek * * * said water is taken out in a ditch from a certain slough
that puts out of said creek; * * *
said slough puts into Dempsey Creek at the County Road,
the said ditch conveying said waters was dug in the spring of 1872 and was through Patrick Quinlan’s land and Michael Grace’s farm to the farm of the undersigned” William Walker. Thus did the man who dug the original slough ditch state under oath that the purpose of the ditch was to appropriate and convey therein 150 inches of the waters of Dempsey Creek. The notice of appropriation further evidences the fact that the “slough puts into said Dempsey Creek” which is but another way of saying that it feeds or contributes water to Dempsey Creek.
After Herman Johnson acquired the Walker ranch, he dug new and additional ditches leading from both the creek and the slough. One of such ditches, known as “Original No. 6 and No. 7 ditch”, tapped the south bank of Dempsey Creek westerly from the county road at a point near the southwest corner of the NW¼ of the SE¼ of section 6, T. 6 N., R. 9 W. conveying water therefrom in an easterly direction to the Walker ranch lands to the south of Dempsey Creek. The ditch was capable of carrying 150 to 200 inches of water and was used jointly by Herman Johnson, Peter Johnson and Patrick Quinlan. Another ditch constructed by Herman Johnson, known as the “No. 11 ditch”, tapped the north bank of Dempsey Creek near the southwest corner of the NW¼ of the NW¼ of Sec. 5, T. 6 N., R. 9 W. and extended in a northeasterly direction conveying the waters of Dempsey Creek to the same lands to the north of Dempsey Creek theretofore served and irrigated solely by means of the slough ditch dug by Walker in 1872. Thus, by the time Cause No. 404 was commenced (1891) there were then four ditches for
conducting water to the Walker ranch, viz.: (1) the “house ditch”; (2) the 1872 Walker Slough ditch; (3) Original No. 6 and No. 7 ditch; and (4) No. 11 ditch.
On April 4, 1892, while Cause No. 404 was pending but before it was decided, Herman Johnson commenced digging out and enlarging the old Walker Slough ditch where it crossed the SE% of the SE¼ of Section 31, T. 7 N., R. 9 W. owned by Patrick Quinlan. Upon discovering these operations on his lands, Patrick Quinlan came down to where Herman Johnson was digging and said: “What in hell are you doing there?” AVhen informed by Herman Johnson of his intention, Quinlan immediately proceeded to Deer Lodge where, on April 11, 1892, he commenced suit against Herman Johnson to enjoin the threatened operations, reciting in his complaint that Herman Johnson had entered upon Quinlan’s land above described and had begun to dig a ditch thereon without leave or permission of Quinlan and against his will, and that Johnson would continue digging thereon unless enjoined.
On April 20, 1892, Herman Johnson filed a duly verified answer in said action wherein he denied “that he is digging or threatening to dig any ditch whatever, but alleges the facts to be, that now and for many years last past the Defendant and his predecessors in interest have owned certain
water rights upon the stream known as Dempsey Creek which passes through the land of Plff. described in his Complaint, and have lawfully owned and used the right of way for at least 150 inches of the waters of said stream across the land of Plaintiff
and have had and maintained a ditch for conveyance of said water across said land—Defts. admits that, he has recently been digging and excavating upon said land of Plff. but avers that such digging has not been done for the purpose of constructing a ditch, but only for the purpose of cleaning Out the ditch already constructed and owned and controlled by the said Defendant and his predecessors in interest, and to restore the same to its original capacity, as this Deft, has the lawful right to do.”
Thus did plaintiff’s immediate predecessor in interest, Her
man Johnson, represent to the court under oath that the ditch running through Patrick Quinlan’s land was for the purpose of conveying to the William Walker ranch at least “150 inches of the waters of Dempsey Creek.” This is the same appropriation of 150 inches of water which the plaintiff Max Kramer, as a successor in interest of the original appropriation, now represents to the court are diverted by him from an “unnamed stream” which he claims is not a tributary of Dempsey Creek.
After a trial, the district court, in the action by Quinlan against Johnson, found the issues against the defendant Herman Johnson and adjudged that the injunction theretofore issued against him be made perpetual and that he be “perpetually enjoined from, and also his agents, servants and employees, digging, cutting, enlarging or in any manner interfering with or continuing the digging of that certain ditch described in the Complaint.” No appeal was ever taken and the order and adjudication became and is final.
In 1900, being eight years after his operations had been stopped by the perpetual injunction against him, Herman Johnson dug another ditch leading south from the place where the old slough ditch crossed the county road a short distance south of the Laundreville house. This new ditch was parallel with and to the west of the county road. At the southerly end of such ditch at a point about 25 rods north of the slough, there was placed a culvert through which the water conveyed by the old slough ditch flowed to still another ditch located to the east of the county road. This last-mentioned ditch was also dug in 1900 and it tapped the north bank of the slough at a point about 8 or 10 feet below, i. e. to the east of the wooden bridge which then spanned the slough at the county road, the intake of the ditch being about 100 feet above the junction of the natural slough channel with Dempsey Creek. From the slough the new 1900 slough ditch ran in a northerly direction parallel with the county road and along the easterly side thereof for a distance of about 25 rods where, through the culvert above mentioned, waters conveyed in the old slough ditch were discharged into
the new 1900 slough ditch where the waters of the two slough ditches were commingled. From such point there was but one ditch for conveying the commingled waters northeasterly through the lands of Peter Johnson to the Walker ranch lands to the north of the creek. The old 1872 slough ditch and the new 1900 slough ditch are each capable of carrying from 150 to 200 miner’s inches of water.
150 miner’s inches of fresh water running in a stream less than a mile and a half in length must soon be disgorged. The evidence clearly shows that, were it not for the artificial means employed by plaintiff and his predecessors in diverting the water from its natural course, the slough waters would naturally flow into Dempsey Creek to contribute to and augment the flow therein. It is only the plaintiff’s interference that prevents the slough from discharging its waters into Dempsey Creek. The plaintiff Kramer testified:
“Q. I want to ask you if at all times that you have known this slough if there has been a sort of stream running through the slough and continuing down with bed and banks and fresh and flowing water and water moving in the central part of the slough; that is, there is a channel there, is there ? A. There is a channel and it widens up through there.
“Q. And it goes down to where your ditch or ditches come out? A. Yes, sir.
“Q. And it is your claim and contention that the slough is not a tributary of Dempsey Creek? A. No.
“Q. That is your contention, the stenographer cannot get your nod. A.
It isn’t as long as we are using it all the time.”
The water running in the slough is not developed water in any sense of the term. The plaintiff nevertheless diverts and uses this water, each season long before there is any water available to satisfy his No. 6 decreed right, being his oldest and best right under the 1892 decree. The only other right now owned by plaintiff is his No. 21 right. Kespecting these rights, plaintiff testified: “I get 50 inches in No. 6. I have also got 21 but it ain’t worth nothing. For many years there was never 21 unless
a flood and by that time the water would be flowing over my meadow. ’ ’
The plaintiff also testified: “Usually the slough was down ahead of the creek and there was water there before the creek because the first right would be handling water above and it took all the water the creek had when the slough was still fresh till there was water enough come down for 6.”
Plaintiff’s interference with the natural flow of the waters in the slough on their downward course to Dempsey Creek deprives the lower decreed users of waters to which they are entitled and thereby plaintiff obtains for himself advantages neither permitted by the decree nor sanctioned by law.
In 1911 the wooden bridges spanning the slough and the creek at the county road were replaced by a single concrete bridge. At this time Dempsey Creek was run northerly along the road until it joined the natural channel of the slough to the west of the road at the new concrete bridge. Extending easterly from this junction point to the Deer Lodge River there was but one stream, namely Dempsey Creek. Before this change in 1911 plaintiff’s new 1900 slough ditch tapped
the slough
a few feet
above
its old junction with the creek. Since the 1911 change this new slough ditch has tapped the north bank of Dempsey Creek direct and
below
the new junction of the slough with the creek. In other words, since 1911 the new slough ditch has had its head in the creek and not in the slough.
Notwithstanding that he continues to use his “Original No. 6 and 8 ditch” from the south bank of the creek, the plaintiff now designates his new 1900 ditch from the north bank of the creek as his “No. 6 ditch.” Through this latter ditch plaintiff conducts water to supply his decreed No. 6 right of 50 inches as of 1867 but he testified that ordinarily after about the 10th of July each year there is no water available to supply such right. Of course when there is no water in Dempsey Creek for the No. 6 right, there is no water to supply the rights of any of the downstream users who take their water from Dempsey Creek at points below the county road. Notwithstanding this situation plaintiff
here claims the right to the first, prior and exclusive use of the waters flowing in or discharged from the slough up to 150 inches, without regard to the decreed rights or the needs of the appealing defendants and all other downstream users along Dempsey Creek. While plaintiff considered his No. 11 right of 50 inches as of 1871 “such a late right it wasn’t worth bothering with” yet he takes a much different view respecting his later claimed appropriation through the slough of 150 inches as of 1872.
The plaintiff rather frankly admitted that with his diversions from the slough he had more water than he needed and for this reason in 1905 or 1906 he sold his No. 11 right out of Dempsey Creek of 40 inches as of 1871 to Jack Perkins. Respecting this right, the plaintiff testified: “When I first came I irrigated enough — I considered 11 such a late right it wasn’t worth bothering with.
I was getting plenty through the slough.”
Again plaintiff testified:
“I had plenty of water. That is why I disposed of No. 11
and there was water enough in the creek I could take 21 if I needed it.”
The 1892 decree states
the amount
of the water to which plaintiff is entitled and
the order
in which he may use it. Since the slough is a tributary of Dempsey Creek, the plaintiff violates the injunctive feature of the decree each time that he takes more than his decreed allotment of water and each time that he takes water out of the order specified in the decree when other decreed appropriators downstream have need for such waters.
Not only is there no substantial evidence to sustain the allegation of the complaint and the basic finding of the district court to the effect that “said slough is not now, and never has been, a tributary of said Dempsey Creek” but such allegation and such finding are directly contrary to the evidence and to the physical facts in this ease. The testimony of plaintiff’s own witnesses, including that given by the plaintiff himself, the map being plaintiff’s Exhibit 1, the recorded water right appropriation by William Walker dated March 24, 1874, the duly verified answer of Herman Johnson filed in the Patrick Quinlan suit on
April 20, 1892, all point unerringly to the fact that Quinlan Slough now is and ever has been a tributary of Dempsey Creek.
This case but illustrates that, “One half the work being done in this world is to make things appear what they are not. ’’
“Whoso asserts that he is entitled to the exclusive use of water by reason of its development by him must assure the court by satisfactory proof that he is
not intercepting the supply to which his neighbor is rightly entitled.” (Smith
v.
Duff,
39 Mont. 382, 102 Pac. 984, 986, 133 Am. St. Rep.
587; Spaulding
v.
Stone,
46 Mont. 483, 129 Pac. 327.) The waters flowing in the slough are Dempsey Creek waters which have been once used on the lands of prior upstream appropriators and which are returning to Dempsey Creek by means of the natural channel of the slough. These waters so returning are intercepted by plaintiff in their downhill course toward Dempsey Creek at times when they are needed to supply the decreed rights of the downstream users including the appealing defendants. This use of the water plainly violates the decree.
The 1892 decree in the original Dempsey Creek water suit, Cause No. 404, adjudicates the rights and priorities of the various appellants and of the respondent Max Kramer as follows:
Present Decreed Owner No. of miner’s No. of Date of inches Right Priority of water
Frank Mero (Appellant) 1 April 1865 52%
John E. Perkins (Appellant) 1 April 1865 12%
Deer Lodge Farms Co. (Appellant) 2 1865 174
Deer Lodge Farms Co. (Appellant) 2 1865 100
W. E. Cummins (Appellant) 4' April 1866 51%
John E. Perkins (Appellant) 4 April 1866 27%
Max Kramer (Respondent) 6 1866 50
May Edson Carpenter (Appellant) 8 April 1866 14%
John E. Perkins (Appellant) 8 1866 26
Deer Lodge Farms Co. (Appellant) 8 1867 50
Pacific Normandin (Appellant) 10 1869 25
John E. Perkins (Appellant) 11 1871 40
Marie Normandin (Appellant) 13 April 1872 95
Deer Lodge Farms Co. (Appellant) 15 1873 200
Marie Normandin (Appellant) 18 April 1881 45
Mary Hempstead (Appellant) 18 April 1881 45
John E. Perkins (Appellant) 20 1884 100
Max Kramer (Respondent) 21 1891 110
In the instant action the respondent Max Kramer claims prior right to 150 miner’s inches of water
by appropriation
as of April 1, 1872 which is the same date as Right No. 13 of the appellant Marie Normandin and which is subsequent to the dates of appropriation fixed in the decree for those appellants holding rights numbered between 1 and 13 under the decree in Cause No. 404.
The respondent Kramer and the numerous appellants herein are each and all entitled to the use of the waters of the tributary only
in the quantity
and
in the order
determined and adjudged in the 1892 decree. To decide otherwise is not only to deprive other decreed users of the water expressly allotted to them by the 1892 decree and to which they are rightly entitled but it is to sanction the taking and use by respondent Kramer of the waters of Dempsey Creek in larger quantities than is allotted to him and to his predecessors by the decree and this without any regard whatever for the order of use prescribed by such decree. The 1892 decree fixes the
quantity
of water and the
order
of its use by the respondent Kramer. Its terms and provisions must be observed.
A court of equity most certainly will not estop the appellants from asserting the respective titles awarded them by the 1892 decree. "The elements requisite for estoppel are substantially those necessary to found an action for deceit, with the exception of the element of knowledge of falsity.” (Weil, Water Rights in Western States, see. 593.) "An estoppel involves turpitude, fraud—such as misleading statements or acts, or concealment of facts by silence—with the result that one party
is induced or led by the words, conduct or silence of another party to do things that he otherwise would not have done. The intent to deceive must have existed, or at least there must have been an imputation that the party against whom an estoppel is claimed expected the other party to act. Unless there is some degree of turpitude, a court of equity will not estop one from asserting his title (or water right in the instant case) where the effect is to forfeit his property and transfer its enjoyment to another.” (Hutchins, Selected Problems in the Law of Water Eights in the West, p. 402.) No such facts appear in the record before us on this appeal.
It would seem that if respondent has insufficient water to supply his requirements during the irrigation season his own acts may be responsible therefor, he having long since voluntarily sold and transferred to Jack Perkins his No. 11 right out of Dempsey Creek appropriated in 1871 and having here failed to establish a prior right by his claimed appropriation as of 1872.
It follows that the trial court’s findings of fact designated XXI, XXII, XXIX, XXXIII, XXXIV, XXXV, XXXVI, XXXVII, XXXVIII, and XXXIX and conclusions of law designated I and II are erroneous as is the judgment based thereon. The judgment appealed from is reversed and the cause remanded with directions to correct the said erroneous findings of fact and conclusions of law to conform hereto and to render judgment against the plaintiff Max Kramer and in favor of appealing defendants. .Appellants are entitled to their costs on this appeal.
Mr. Justice Anderson concurs.