Thorp v. Freed

1 Mont. 651

• Court: Montana Supreme Court
• Decided: August 15, 1872
• Status: Published

Opinions

Knowles, J.

This case, in some respects, is anomalous. The plaintiffs assert a right to the waters of Prickley Pear creek, as appropriators thereof for the purposes of irrigation, and complain that the defendants have diverted some of the waters of- said creek, and prevented the same from flowing into plaintiffs’ irrigating ditches, and ask for an injunction to preven! the continuance of this breach of their rights.

The question of the right, in this Territory, to appropriate water for the purposes of irrigation, is one of great importance and general interest, and which, perhaps, ought to be determined at the earliest day-possible. Undoubtedly, this cause might be decided, in view of the manner in which it is presented to this court, without considering this question ; but, as it was presented in the trial, in the court below, and is ably discussed in the arguments of both appellants and respondents, we feel called upon to express our views concerning it.

The common-law rule was, that he who owned land upon the banks of a running stream, or land over which the same flowed, had a right to have the waters thereof flow down, to or over his land, undiminished, materially, in quantity or quality. The riparian proprietor could use the water flowing past or over his land for domestic purposes and to quench the thirst of man and animals; but no one was permitted to divert water from the channel where it was accustomed to run, for the purposes of irrigation. Certainly such a diversion of water would both diminish materially its quantity and quality. The first legislative assembly of Montana Territory enacted:

‘ ‘ That the common law of England, so far as the same is applicable and of a general nature, and not in conflict with the special enactments of this Territory, shall be the law and rule of decision, and shall be considered as of full force until repealed by legislative authority.” Laws of Montana for 1864 and 1865, 356.

The only way that a court can escape the bearing of this statute on this subject would be to hold that the common law, upon the question of riparian proprietors, was either inapplicable or was not of a general nature, or was in conflict with some enactment of the legislative assembly of this Territory, or of the congress of the United States.

We have running streams, upon whose banks people live and hold land, and this would-be sufficient to show its applicability. We do not conceive that a court can say that the provisions of the common law are not for the best interests of this section of country, and therefore inapplicable. The question of whether or not a law is for the good of the people in our Territory, is a matter for legislative, and not judicial, consideration. Much of the common law of England pertains to the English form of government, and the privileges of castes, which are not at all applicable to our form of government; and these are the provisions of the common law, I presume, the legislative assembly had in view in the enactment above referred to as inapplicable. It seems to be contended, by the court below, that the natural wants of man, and the physical and climatic conditions of this Territory, have of necessity changed the common law upon the subject of riparian proprietors, or that these show that that law is inapplicable, in part at least. And it was held by the court below that, in accordance with the demands of our section, the common law was so modified that any one, living upon the banks of a running stream, as a riparian proprietor, can divert the waters thereof, for the purposes of irrigation, to the extent of the land he cultivates; and that he who is nearest to the source of the stream shall have, by virtue of his position, the right to first divert the waters of the same, to the exclusion of those below him thereon, if necessary to irrigate his land, even though those whose lands are nearer the mouth of the stream should have occupied them for years, and spent large sums of money in improving them and making a homestead thereon, prior to the fortunate settler above them. Surely the climatic and physical conditions of this country cannot be such as to create a law so at variance with natural equity and so fatal to the improvement and prosperity of our best agricultural districts. It must be apparent to all that the best agricultural lands in this Territory are not at the sources of the streams. Our broad valleys, as a rule, are better adapted by nature for settlement and agriculture than our narrow and rocky canons and mountain gorges. If we were called upon to say what were the necessities of this country, in regard to the use of water for the purposes of irrigation, we should reply that there was a demand that water should be used for that purpose, and that the considerations of the general welfare of the country and the principles of natural equity should guaranty to the prior appropriator of water for such, use the first right to the use of the same, to the extent of his necessities for domestic purposes, the quenching of the thirst of himself or animals, and for agricultural purposes. We can see no reason why, if the common law is to be changed by the considerations above named, -it should not be changed to suit the wants of the country and in accordance with the principles of equity. We hold, however, that a law that is a -part of a system of laws which our legislative assembly have adopted cannot be annulled or varied by a court, through any such considerations.

In the second place the common-law, upon the subject of riparian proprietors, is of a general nature.

In the third place, has this law been repealed or modified by the act of the legislative assembly or by act of congress %

The congress of the United States, by an act approved July 26, 1866, entitled “ An act granting the right of way to ditch and canal owners over the public lands and for other purposes,” provides “that whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of the courts, the possessors and owners of such vested rights shall be maintained and protected in the same, and the right of way for the construction of ditches and canals for the purposes aforesaid,is hereby acknowledged and confirmed.”

If the right to the waters of Prickly Pear creek have accrued to and become vested in the plaintiffs by priority of possession, and the right to the same has been acknowledged and recognized by the customs, laws, and decisions of the courts of this Territory, then there is no doubt but that the common-law doctrine, in relation to the rights of riparian proprietors, has been changed. It is not denied in the answer but that the plaintiffs have appropriated a portion of the waters of the said creek. The plaintiffs must recover, if at all, upon their right of appropriation. They have based their right upon this, and not as riparian proprietors.

Ever since the settlement of this Territory, it has been the custom of those who settled themselves upon any portion of the public domain, and devoted any part thereof to the purposes of agriculture, to dig ditches, and turn out the waters of some stream to be used to irrigate the same. This right has been generally recognized by our people. It has been universally conceded that this was a necessity in agricultural pursuits. So universal has been this usage that I do not suppose there has been a parcel of land to the extent of one acre cultivated within the bounds of this Territory that has not been irrigated by water diverted from some running stream. Both plaintiffs and defendants recognize this custom and the' necessity of the same. Both are diverting water from the Prickly Pear creek for this purpose. If a practice so universal, and which has So long prevailed, does not establish a custom, it would be most difficult to do so. There have been but few disputes up to this time upon the subject of the use of water for the purposes of irrigation, and in not one of these, as far as we are informed, has the right to devote water to such a use been denied. It may safely be asserted the right to appropriate water for the purposes of agriculture have been recognized and acknowledged by the customs of this Territory.

In the second place, has this right been acknowledged and recognized by law ? The first legislative assembly of this Territory passed an act upon the subject of irrigation. The first-section of that act is as follows:

“ That all persons who claim, own or hold a possessory right or title to any land or parcel of land within the boundary of Montana Territory, as defined in the organic act of. this Territory, when those claims are in the banks, margin or neighborhood of any stream of water, creek or river, shall be entitled to the use of the water of said stream, creek or river for the purpose of irrigation, and making said claim available to the full extent of the soil for agricultural purposes.”

The second section provides for the right of way for the construction of ditches, for the purpose of taking water out of a stream, creek or river for the purposes of irrigation. See Bannack Stat. 367, §§ 1, 2.

This statute was in force at-the time the plaintiffs made their appropriation of water, and at the time the act of congress above referred to became a law. This statute, as far as it could, established and recognized the right of appropriation of water for agricultural purposes. Of course it could not establish this right as against the general government, or any person claiming thereunder. But as against any other parties the plaintiffs would have the right to the use of any water appropriated for that purpose if they are prior appropriators. As far as the legislative assembly of Montana had the power, they repealed the common-law doctrine in regard to riparian proprietors. If it is claimed that this statute does not recognize the doctrine of “prior in time, prior in right,” the answer to this is, that’when the law gives a man the right to divert water from a stream to irrigate his land to the full extent of the soil thereof, and in pursuance of this law he goes and digs a ditch, or constructs machinery for the purpose of taking water from a stream for this purpose at great expense, the principles of equity come in and say that no other man can come in- and divert this water away from him. That he is prior in time in availing himself of the benefits of such a statute, and his rights are prior to any subsequent appropriator. It is claimed by the respondents, and it would appear was held by the court below, that this statute had been decided to be void as in conflict with the organic act of this Territory. The decision referred to did not hold that the whole of this statute was void, but only a portion of it. The statute conferred upon certain officers, called commissioners, the right to apportion the water' of any creek “ having reference to the legal rights of the parties.” This court held that this conferred upon these commissioners the power to determine what were the legal rights of the parties, that this was a judicial .power, and that the judicial power of this Territory was vested in certain courts by the organic act, and that our legislative assembly had no authority to confer any portion of it upon the commissioners provided for in that act. The declaring of certain provisions of a statute void will not certainly have the effect of declaring all of the provisions of a statute a nullity. One part of a statute may be good and one part bad. We can see no reason for holding any other portions of that statute void at this time than were declared such by the decision referred to. It was a rightful subject of legislation to repeal or modify the doctrine of riparian proprietors in this Territory so far as the same affected the possessory rights to the soil thereof. The fact that this law was subsequently repealed does not affect the decision in this case. The rights of the plaintiff had become vested and had accrued before that repeal. The repeal of a statute will not destroy vested rights. Another act recognizing the same right was enacted in its place. I hold, then, that the law of this Territory did recognize and acknowledge the right to the use of water for the purposes of irrigation, and that it recognized it in the prior appropriator, to the extent his soil could be devoted to agriculture and no further.

Thirdly, has this right been recognized and acknowledged by the decisions of the courts %

In California the courts have sustained the rights to appropriate water for mining purposes. The courts of this Territory have followed and repeatedly approved of those decisions. The legal grounds for sustaining such a right have been based upon the view that the unsurveyed lands of the United States, upon which any community settles, must be treated as belonging to no one. Hence, the one who first appropriates any portion thereof, or incident thereto belonging, for a beneficial purpose, would become the owner thereof until the general government, or some one claiming thereunder, should assert title to the same. The right of the first appropriator to unowned property has always been recognized and protected by the common law. Of course this right can be regulated by law. The California decisions hold that there is no difference between the appropriation of water for mining and milling purposes. Ortman et al. v. Dixon et al., 13 Cal. 33; McDonald & Blackburn v. The Bear River and Auburn Water & Mining Company, id. 220.

In this case the court hold the following language: “We have held that there is no difference in respect to this use, or rather purpose to which the water is to be applied, at least, that an appropriation for the use of a mill stands on the same footing as an appropriation for the use of mines.”

We would be justified in the inference from this language that that court did not make any difference in the use or purpose for which water was appropriated, if the use was a beneficial one.

The courts of this Territory, and of California, have sustained the right to appropriate agricultural land for agricultural purposes upon the unsurveyed public domain. The water that flows over land is but an incident to it. There are no grounds upon which a court could sustain the right to appropriate land that would not apply to the right to appropriate the water flowing over land, an incident to the land itself. To give the one right and deny the other, would be the granting of the right to a party to appropriate every vestige of a piece of property and deny him the right to appropriate a small portion thereof. The light to appropriate water for mining or milling purposes, resting in this country before the act of congress above referred to, upon the grounds that no one owns the property, and that the appropriation is for a beneficial purpose, establishes a principle that certainly ought to allow the appropriation of water for the purposes of irrigation. In this latter case no one, it would be presumed, owned the water, and the appropriation would be for a beneficial use.

Whenever a legal rule is once established by legal decisions, it controls all cases which come within the reason of the rule. “ Adjudged cases become precedents for future cases resting upon analogous facts and brought with the same reason.” 1 Kent’s Com. 537.

“ Ubi eadern ratio ibi idem jus'1'1 is a familiar legal maxim, one which courts of law have long acted upon in arriving at legal determinations.

Broom, in his work on Legal Maxims, page 131, shows how a decision in relation to the alteration of a deed or bond was declared to be authority in the alteration of a bill of exchange and a promissory note, because the reason of the rule established in the former cases was applicable to the latter, and Anally the decisions in these were held to be authority in the case of the alteration of a guaranty for the same reason.

“The law consists not in particular instances and precedents, but in the reason of the law, for reason is the life of the law.” Broom’s Legal Maxims, 130.

The reason of the rule that allows parties to appropriate water for mining or milling purposes being such that it would fully sanction the appropriation of water for the purposes of agriculture, and there being no reason why the courts should sustain the right to appropriate land and deny the right to appropriate water, a mere incident to land, for the purposes of irrigation, I think we can safely say. that the appropriation of water for that purpose has been acknowledged and recognized by the decisions of the courts. To hold otherwise, because no decision had been made in this Territory maintaining the right to appropriate water for. this identical purpose, would be “sticking in the bark” and ignoring the spirit of the law, and disregarding the maxim of which our common-law jurisprudence has been so boastful, that reason is the soul of the common law.

The right to appropriate water for the purposes of irrigation having, in our opinion, been acknowledged and recognized by the customs, laws and decisions of the courts of this Territory, the law of congress comes in and says that whenever, by priority of possession, the right to the use of water for this purpose “have vested and accrued,” “the possessors and owners of such vested rights shall be maintained and protected in the same.”

This is in effect a grant to such parties of this right. It appears from the statement of the evidence in this case, that all of the parties to this action now own the government title to their lands. But this will not vary the rule above . established in this case. Whatever rights the parties had in relation to the waters of the Prickly Pear creek, vested before any of these parties acquired their rights to the land under the general government. This decision, it will be understood, does not go to the extent of allowing parties to appropriate and divert water so as to prevent the same from flowing over land to which a party had obtained the government title after the acquisition of this title. If no one before the pre-emption and entry of land by a party has acquired the right to divert the waters of a stream, then the patent from the general government conveys the water as an incident to the soil over which it flows. If it has been appropriated before the time when the patent takes effect, it does not.

It is claimed, however, that this act of congress was only to affect settlers upon the public domain as long as it remained unsurveyed and was not open for pre-emption and entry. There is no reservation of this kind in the act itself. And to show that this was not the intention of congress we have an amendment to that act, approved July 9, 1870. A part of the seventeenth section of this amendatory act is as follows:

“ And be it further enacted, That none of the rights conferred by sections 5, 8 and 9 of the act to which this act is amendatory shall be abrogated by this act, and the same are hereby extended to all public lands affected.by this act, and all patents granted or - pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under or recognized by the ninth section of the act of which this is amendatory.”

This part of that section clearly demonstrates that congress did not and does not intend that the rights granted by section 9 of the previous act should be confined to the unsurveyed public domain. This amendatory, or rather confirmatory, section only declares what the courts would have been compelled to hold was the legal effect of section 9 of the previous act. A grant of a right cannot be divested by a subsequent grant. The words used in section 9 were, as we have said, in effect a grant. A grant made by law is as effectual as a grant made by deed or . patent. And a subsequent grant of land would be subject to any previous grant of a water right. After a full consideration we are impelled to the conclusion that the right to appropriate water for the purposes of irrigation in this Territory stands upon as good, if not a better, footing as the right to appropriate water for mining purposes. This right has been and is subject to be regulated by law. And that the doctrine in relation to riparian proprietors has been abrogated to a considerable extent. Before the government title to land, over which water flows, has been acquired by a private person, such water may be appropriated and diverted in accordance with legal provisions. Afterward it cannot, and the doctrine of riparian proprietors would prevail as to it.

The case of Vansicle v. Haines, 7 Nevada, cited in this case, is not in point. In that case the government had parted with the title to the soil over which the water flowed before the act of congress of July 26,1866, above referred to. The patent to Haines of the soil before the passage of that over which the water flowed carried with it the water as an incident thereto, and after the government had parted with this incident to the soil it could not grant it to any one else. I certainly agree with the opinion of the court in that case.

Having arrived at the legal rules by which we will be governed in relation to the appropriation of water for the purpose of irrigation, we come now to the consideration of whether under the issues presented in this case and the facts found by the court any rights of the plaintiffs have been infringed so as to entitle them to the injunction prayed for in their complaint.

The plaintiffs aver in their complaint that during the years 1865, 1866 and 1867 they appropriated all of the waters of Prickly Pear creek for the purposes of irrigation. That all of the waters of said creek are necessary to irrigate their lands, which they aver they located during the same years they appropriated the water, and that the said lands are upon and contiguous to the said creek. That all of the •waters of said creek are necessary to irrigate their land, and was used by them for that purpose, and without it they would be unable to produce any crop, and a,ver that the defendants have diverted and used the water of said creek appropriated by them, and continue and threaten to continue to do so.

The defendants deny that the plaintiffs appropriated all of the waters of Prickly Pear creek. Deny that all of the waters of said creek are necessary to irrigate the land of the plaintiffs, and deny that they have diverted more than five hundred inches of the water of said creek, and aver that their appropriation of the same was prior to any appropriation of the plaintiffs thereof. There are other issues presented in the pleadings. These are enough, however, for the purpose of determining the points presented.

The court refused to grant the injunction prayed for by plaintiffs and gave the defendants judgment for costs.

The plaintiff moved for a new trial, and as grounds therefor assigned the following list of errors :

1. The court erred in refusing to grant the plaintiffs the injunction prayed for in their complaint.

2. The court erred in ordering judgment to be in favor of defendants and against the plaintiffs.

3. The court erred in its finding of fact.

4. The court erred in its conclusions of law.

5. That the findings of both law and fact are against the evidence.

There are no other specifications of error in the record than the above. This assignment of errors is so general that, as has been frequently held by this court, they cannot be considered. This court, in this particular, has followed those of California. See Hutton v. Reed, 25 Cal. 483; Partridge v. San Francisco, 37 id. 415; Fitch v. Bunch, 30 id. 208.

The assignment of error should point out wherein the error was committed. Upon that distinct point, our practice act provides: “When the notice designates as the ground upon which the motion will be made, the insufficiency of the evidence to justify the verdict, or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient.”

In this case there was no verdict, the cause being a chancery one and no findings of fact by the court. When the court fails to file any findings, the presumption of law is that the court found every material issue in the case against the losing party and in favor of the party that was successful. The opinion of the court cannot be treated as a finding of facts. It is not what is contemplated by the statutes of this Territory as a finding of facts. Our statute upon this'subject is the same as that of California. The courts of that State have- held that it cannot be treated as such. See Hidden v. Jordan, 28 Cal. 305; McClory v. McClory, 38 id. 575.

The statement does not specify the particulars in which the evidence is insufficient to support any of the findings of fact which the law presumes were found. Treating the opinion of the district court as a finding of facts, and the statement does not specify the particulars in which any thing expressed therein which could be considered as a finding of fact, is unsupported by the evidence. Under our statute, then, the statement must-be disregarded. Laws of 1867, p. 172, § 195.

Although there may in fact have been errors in the findings of facts, which this court will presume were found by the court below, we have no means of reviewing them.

The material issues having been found against the plaintiffs and in favor of the defendants, there certainly was no error in law for the court to refuse to grant the injunction asked for by the plaintiffs, unless the defendants in their answer raised no material issue which it was necessary for the plaintiffs to establish in order to entitle them to recover. No such claim is made by the appellants. This court will not reverse a cause because it holds that the reasons a court may have given for his decision were erroneous.

Judgment affirmed, with costs.