on any bond, bill, promissory note, or other instrument of writing, and on any judgment rendered before any court or magistrate authorized to enter up the same, within the territory, from the day of entering up such judgment until satisfaction of the same be made; likewise on money lent, or money due on the settlement of accounts, from the day of such settlement of accounts, between the parties, and ascertaining the balance due; on money received to the use of another, and retained without the owner's knowledge, and on money withheld by an unreasonable and vexatious delay.

Sec. 3. The parties to any bond, bill, promissory note, or other instrument of writing, may stipulate therein the payment of a greater or higher rate of interest than ten per centum per annum, and any such stipulation contained in any such instrument of writing may be enforced in any court of law or equity of competent jurisdiction in this territory. And when any instrument provides for a certain rate of interest, from date until paid, or after due until paid, or in words to like effect, it shall be construed to mean interest at the stipulated rate until the same is paid.

CHAPTER XXXIV.

IRRIGATION-WATER-RIGHTS.

Sec. 1. Any person or company holding land entitled to water for irrigation.

Sec. 2. Persons to have right of way for ditch or canal.
Sec. 3. Right to extend only so far as is necessary.

Sec. 4. Date of appropriation to determine rights.

Sec. 5. Water to be made available without injury to prior ap propriator.

Sec. 6. Person digging ditch to be liable for damage.
Sec. 7. This act not to interfere with rights acquired; its
passage.
Sec. 8. This act not to prevent use of water for mining, &c.
Sec. 9. Persons constructing ditches across roads to repair same.
Sec. 10. Penalty for violating preceding section.
Sec. 11. Rights of persons to be governed by local law, rules, and
customs, decisions of supreme court, &c.

Section 1. That any person or persons, corporation or company, who may have or hold a title, or possessory right or title, to any agricultural lands within the limits of this territory, as defined by the organic act thereof, shall be entitled to the use and and enjoyment of the waters of the streams or creeks in said ter

ritory for the purposes of irrigation and making said land available for agricultural purposes to the full extent of the soil thereof.

Sec. 2. That when any person or persons, corporation or company, owning or holding land as provided in section one of this act, shall have no available water facilities upon the same, or whenever it may be necessary to raise the waters of said stream or creek to a sufficient height to so irrigate said land, or whenever such lands are too far removed from said stream or creek to so use the waters thereof as aforesaid, such person or persons, corporation or company, shall have the right of way through and over any tract or piece of land for the purposes of conducting and conveying said water by means of ditches, dykes, flumes, or canals, for the purpose aforesaid.

Sec. 3. That such right to so dig and construct ditches, dykes, flumes, and canals, over and across the lands of another, shall only extend to so much digging, cutting, or excavations as may be necessary for the purposes required.

Sec. 4. That in all controversies respecting the rights to water, under the provisions of this act, the same shall be determined by the date of the appropriation, as respectively made by the parties.

Sec. 5. That the waters of the streams or creeks of the terriritory may be made available to the full extent of the capacity thereof for irrigating purposes, without regard to deterioration in quality or diminution in quantity, so that the same do not materially affect or impair the rights of the prior appropriator; but in no case shall the same be diverted or turned from the ditches or canals of such appropriator, so as to render the same unavailable.

Sec. 6. That any person or persons, corporation or company, damaging or injuring the lands or possessions of another, by reason of cutting or digging ditches or canals, or erecting flumes, as provided by section two of this act, the party so committing such injury or damage shall be liable to the party so injured therefor.

Sec. 7. That this act shall not be so construed as to impair, or in any way or manner interfere with, the rights of parties to the use of the water of such streams or creeks acquired before its passage.

Sec. 8. That this act shall not be so construed as to prevent or exclude the appropriators of the waters of the said streams or creeks for mining, manufacturing, or other beneficial purposes, and the right also to appropriate the same is hereby equally recognized and declared.

Sec. 9. That any person or persons, corporation or company, who may dig and construct ditches, dykes, flumes, or canals, over or across any public roads or highways, or who use the waters of

such ditches, dykes, flumes, or canals, shall be required to keep the same in good repair at such crossings or other places where the water from any such ditches, dykes, flumes, or canals, may flow over, or in any wise injure, any roads or highways, either by bridging or otherwise.

Sec. 10. Any person or persons offending against section nine of this act, on conviction thereof, shall forfeit and pay for every such offence a penalty of not less than twenty-five dollars, nor more than one hundred dollars, to be recovered, with costs of suit, in civil action, in the name of the territory of Montana, before any court having jurisdiction; one half of the fine so collected shall be paid into the county treasury for the benefit of the common schools of the county in which the offence was committed, and the other half shall be paid to the person or persons informing the nearest magistrate that such offence has been committed. All such fines and costs shall be collected without stay of execution, and such defendant or defendants may, by order of the court, be confined in the county jail until such fine and costs shall have been paid.

Sec. 11. That in all controversies respecting the right to water in this territory, whether for mining, manufacturing, agriculture, or other useful purpose, the rights of the parties shall be determined by the dates of appropriation respectively, with the modifications heretofore existing under the local laws, rules, or customs and decisions of the supreme court of the territory.

CHAPTER XXXV.

JAILS AND PRISONERS.

Sec. 1. A jail shall be built in each county.

Sec. 2. County commissioners to have direction of jail and treatment of prisoners.

Sec. 3. Sheriff to have custody of jail and prisoners, to furnish sustenance, clothing, &c.

Sec. 4. Sheriff may appoint a jailer.

Sec. 5. In case of death or resignation of sheriff, jailer to have

charge.

Sec. 6. Penalty for defrauding prisoners.

Sec. 7. Sheriff to make return to county commissioners of prisoners in jail-when.

Sec. 8. Persons in custody of United States authorities may be committed to jail on payment of fees, &c.

Sec. 9. Prisoners confined for inability to pay fines, &c., may hired out; earnings-how disposed of.

be

Sec. 10. Governor, for sufficient reasons, may order prisoners removed to another jail.

Sec. 11. Expenses to be paid by county from whence removed.
Sec. 12. Sheriff to convey prisoners to penitentiary.

Sec. 13. Convicts sentenced to imprisonment may be compelled to labor during their term.

Sec. 14. Such labor to be done under direction of county commissioners.

Sec. 15. Corporate authorities of cities authorized to work or employ criminals.

Sec. 16. Officers empowered to chain prisoners to prevent escape. Sec. 17. Unruly prisoners-how punished.

Section 1. There shall be built or provided, and kept in good repair, in each county, one common jail, at the expense of the county.

Sec. 2. The county commissioners shall have the care of building, inspecting, and repairing such jail, and shall, once every three months, inquire into the state, as respects the security thereof, and the treatment and condition of prisoners, and shall take all necessary precaution against escape, sickness, or infection.

Sec. 3. The sheriff shall have the custody of the jail in his county, and of the prisoners therein, and shall keep the same, personally or by his deputy, for whose debts he shall be responsible, and shall furnish, at the expense of the proper county, all necessary sustenance, bedding, clothing, fuel, and medical attendance for the prisoners committed to his custody, and the county commissioners shall allow him reasonable compensation out of the county treasury, not exceeding three dollars per day, for the support of all prisoners confined on criminal process.

Sec. 4. The sheriff may appoint a jailer, who, in the absence or disability of the sheriff, shall have the custody of the jail and the prisoners.

Sec. 5. In case of the death, resignation, or removal of the sheriff, the person provided for by law to supply his place shall have charge of the county jail of his proper county, and all persons by law confined therein, and such sheriff or other officer is hereby required to conform, in all respects, to the provisions of this act.

Sec. 6. If any sheriff or jailer shall defraud any prisoner of his allowance, or shall not provide a reasonable allowance and accommodation, he shall forfeit fifty dollars for each offence, to be recovered by an action for debt by the county commissioners, for the use of the county.

Sec. 7. The sheriff, or other officer performing the duties of

sheriff, shall, five days previous to the opening of the district court in the district in which his county is situated, return to the commissioners of his county a certified list of the names of all prisoners then in his custody, with the time and cause of their confinement, and the length of the term for which they were committed, and he shall also return to said commissioners, within five days after the close of said term of court, the name and cause and term of commitment of every prisoner committed during said term of court, and any jailer who shall neglect to make such return, for every such neglect shall pay a fine not to exceed fifty nor less than twenty dollars, to be imposed at the next term of said court, on information of said commissioners of such neglect, and such fine shall go to the county.

Sec. 8. Persons may be committed under the authority of the United States to any jail in this territory upon payment of the expenses of supporting such prisoners, ten dollars per month to the county, for the use of the jail, and all legal fees to the jailer, and the sheriff shall receive such prisoners and subject them to the same discipline and treatment, and be liable for any neglect of duty, as in the case of other prisoners, but the county, in no case, shall be liable for the escape of such prisoner or prisoners.

Sec. 9. Whenever any prisoner under conviction for any criminal offence shall be confined in jail for any liability to pay any fine, forfeiture, or costs, or to procure sureties, the district court, upon satisfactory evidence of such inability, may, in lieu thereof, confine such person in the county jail at the rate of five dollars per day until the forfeiture or costs so imposed shall be satisfied; and, in such case, the sheriff may procure chains for the safe keeping of such prisoner or prisoners, and hire out or put to labor such prisoner or prisoners, and shall charge the earnings of the same to himself for the sustenance of said prisoners, and any surplus that may accrue from such labor shall be paid into the county treasury to the credit of said prisoner.

Sec. 10. Whenever from any sufficient cause the sheriff shall think it expedient that the prisoner be removed from the jail of his county, on application in writing to the governor of the territory by the sheriff and commissioners of such county, the governor may order such prisoner to be removed to some other jail, anywhere within the territory, there to be detained in the same manner as in the jail from whence they were moved, until remanded back by a similar process, or discharged according to

law.

Sec. 11. All the expenses of removing and maintaining prisoners, incurred under the preceding section, shall be defrayed by the county from which they were so removed.

Sec. 12. Within five days after the adjournment of a term of court in each county, the sheriff shall convey to the territorial