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easement. If, therefore, in the case at bar, the dam of the lower mill had never been lowered, the right to use a dain of that beight, notwithstanding the unity of possession, would have passed to the subsequent grantee of the lower mill as a subsisting privilege or appurtenance upon the doctrine asserted, and correctly asserted, by Doddridge, J. But the dam, during the unity of possession and long before, had been lowered two feet, and, so far as it was an adverse right, bad been extinguished in point of use before the unity of possession; and, not being revived during that unity, it was extinguished forever. It did not pass by the grant to Congdon, for nothing passes by a grant of a mill, and the privileges and appurtenances thereof, but privileges and appurtenances existing at the time of the grant.

In Nicholas v. Chamberlain, Cro. Jac., 121, it was held by all the court “that if one erect a house and build a conduit thereto in another part of his land and convey water by pipes to the house, and afterwards sell the house with the appurtenances, excepting the land, or sell the land to another, reserving to himself the house, the conduit and pipes pass with the house, because it is necessary and quasi appendant thereto.” Here the unity of possession was not admitted to destroy the right to the easement, because it was annexed to the messuage, and in use at tbe time of the grant. But if the conduit and pipes had been actually severed before the grant, there could have been no pretense to say that the conduit and pipes passed as appurtenances. The case of Morris v. Edginton, 3 Taunt., 24, although different in its circumstances, appears to me in its reasoning to warrant this conclusion. Whatever is actually enjoyed with the thing granted, as a beneficial privilege at the time of the grant, passes as parcel of it, but not otherwise.

$ 159. Where two mills, one above the other on the same stream, were once in the possession of one person, and were afterwards owned by different men, held, that such forier unity of possession did not extinguish the right to use the water-course appurtenant to either mill.

My opinion on the second point accordingly is that by the unity of possession any adverse right of obstruction of the water to the prejudice of the upper mill, in posse, and not in esse, was extinguished; and the grant to Congdon conveyed the lower mill with only such privileges and appurtenances to the dam and water as were at that time used and appropriated to it.

Judgment accordingly.


(20 Wallace, 670–686. 1874.)

APPEAL from the Supreme Court of Montana.

STATEMENT OF Facts.— Basey brought suit against Gallagher and others, praying for an injunction to restrain them from diverting the waters of Avalanche creek, to which they claimed a title by prior appropriation, using the waters for purposes of irrigation. The defendants demurred because the cause of action was barred by the statute of limitations, and because there was no cause of action set out in the complaint. There was an answer filed afterwards, denying generally the allegations of the petition. There was judgment for the plaintiffs and an appeal to the supreme court, in which the judgment was affirmed. Further facts appear in the opinion of the court.

The record does not disclose what disposition was made of the demurrer to

the complaint, but as an answer was subsequently filed upon which the parties proceeded to a hearing, the presumption is that it was abandoned.

$ 160. The pructice law of Montana territory.

By the organic act of the territory the district courts are invested with chancery and common-law jurisdiction. The two jurisdictions are exercised by the same court, and under the legislation of the territory the modes of procedure up to the trial or bearing are the same whether a legal or equitable remedy is sought. The suitor, whatever relief he may ask, is required to state "in ordinary and concise language” the facts of his case upon which he invokes the judgment of the court.

But the consideration wbich the court will give to tlie questions raised by the pleadings, when the case is called for trial or hearing, whether it will subinit them to a jury or pass upon them without any such intervention, must depend upon the jurisdiction which is to be exercised. If the remedy sought be a legal one, a jury is essential unless waived by the stipulation of the parties; but if the remedy sought be equitable, the court is not bound to call a jury, and if it does call one, it is only for the purpose of enlightening its conscience and not to control its judgment. The decree which it must render upon the law and the facts must proceed from its own judgment respecting them, and not from the judgment of others. Sometimes in the same action both legal and equitable relief may be sought, as, for example, where damages are claimed for a past diversion of water, and an injunction prayed against its diversion in the future. Upon the question of damages a jury would be required; but upon the propriety of an injunction the action of the court alone could be invoked. The formal distinctions in the pleadings and modes of procedure are abolished; but the essential distinction between law and equity is not changed. The relief which the law affords must still be administered through the intervention of a jury, unless a jury be waived; the relief wlich equity affords must still be applied by the court itself, and all information presented to guide its action, whether obtained through masters' reports or findings of a jury, is merely advisory. Ordinarily, where there has been an examination before a jury of a disputed fact, and a special finding made, the court will follow it. But whether it does so or not must depend upon the question whether it is satisfied with the verdict. Discretion to disregard the findings of the jury may undoubtedly be qualified by statute; but we do not find anything in the statute of Montana, regulating proceedings in civil cases, which affects this discretion. That statute is substantially a copy of the statute of California as it existed in 1851, and it was frequently held by the supreme court of that state that the provision in that act requiring issues of fact to be tried by a jury, unless a jury was waived by the parties, did not require the court below to regard as conclusive the findings of a jury in an equity case, even though no application to vacate the findings was made by the parties, if, in its judgment, they were not supported by the eridence. That court only held that the findings, when not objected to in the court below and the judge was satisfied with them, could not be questioned for the first time on appeal. Still v. Saunders, 8 Cal., 287; Goode v. Smith, 13 id., 81; Duff v. Fisher, 15 id., 376. See, also, Koppikus v. State Capitol Commissioners, 16 id., 248; and Weber v. Marshall, 19 id., 147.

$ 161. The first appropriator has a right to running water on the public lands of the United States.

The question on the merits in this case is whether a right to running waters on the public lands of the United States for purposes of irrigation can be acquired by prior appropriation as against parties not having the title of the government. Neither party has any title from the United States; no question as to the rights of riparian proprietors can therefore arise. It will be time enough to consider those rights when either of the parties has obtained the patent of the government. At present both parties stand upon the same footing; neither can allege that the other is a trespasser against the gorernment without at the same time in validating his own claim.

In the late case of Atchison v. Peterson [20 Wall., 507], we had occasion to consider the respective rights of miners to running waters on the mineral lands of the public domain; and we there held that, by the custom which had obtained among miners in the Pacific states and territories, the party who first subjected the water to use, or took the necessary steps for that purpose, was regarded, except as against the government, as the source of title in all controversies respecting it; that the doctrines of the common law declaratory of the rights of riparian proprietors were inapplicable, or applicable only to a limited extent, to the necessities of miners, and were inadequate tn their protection; that the equality of right recognized by that law among all the proprietors upon the same stream would have been incompatible with any extended diversion of the water by one proprietor and its conveyance for mining purposes to points from which it could not be restored to the stream; that the government, by its silent acquiescence, had assented to and encouraged the occupation of the public lands for mining; and that he who first connected his labor with property thus situated and open to general exploration did, in justice, acquire a better right to its use and enjoyment than others who had not given such labor; that the miners on the public lands throughout the Pacific states and territories, by their customs, usages and regulations, had recognized the inherent justice of this principle, and the principle itself was at an early period recognized by legislation and enforced by the courts in those states and territories, and was finally approved by the legislation of congress in 1866. The views there expressed and the rulings made are equally applicable to the use of water on the public lands for purposes of irrigation. No distinction is made in those states and territories by the custom of miners or settlers, or by the courts, in the rights of the first appropriator, from the use made of the water, if the use be a beneficial one.

In the case of Tartar v. The Spring Creek Water and Mining Company, decided in 1855, the supreme court of California said: “The current of decisions of this court go to establish that the policy of this state, as derived from her legislation, is to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner. In evidence of this, acts have been passed to protect the possession of agricultural lands acquired by mere occupancy; to license miners; to provide for the recorery of mining claims; recognizing canals and ditches wbich were known to divert the water of streams from their natural channels for mining purposes; and others of like character. This policy has been extended equally to all pursuits, and no partiality for one orer another has been evinced, except in the single case where the rights of the agriculturist are made to yield to those of the miner where gold is discovered in his land.

The policy of the exception is obvious. Without it the entire gold region might have been inclosed in large tracts, under the pretense of agriculture and grazing, and eventually what would have sufficed as a rich bounty to many thousands would be reduced to the proprietorship of a few.

Aside from this the legislation and decisions have been uniform in awarding the right of peaceable enjoyment to the first occupant, either of the land or of anything incident to the land.” Per Heydenfeldt, J., 5 Cal., 397.

$ 162. The right to running water recognized by act of congress of 1866.

Ever since that decision it has been held generally throughout the Pacific states and territories that the right to water by prior appropriation for any beneficial purpose is entitled to protection. Water is diverted to propel machinery in four-mills and saw-mills and to irrigate land for cultivation, as well as to enable miners to work their mining claims; and in all such cases the right of the first appropriator, exercised within reasonable limits, is respected and enforced. We say within reasonable limits, for this right to water, like the right by prior occupancy to mining ground or agricultural land, is not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use and vest an absolute monopoly in a single individual. The act of congress of 1866 recognizes the right to water by prior appropriation for agricultural and manufacturing purposes as well as for mining. Its language is: “ 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 decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same."

It is very evident that congress intended, although the language used is not happy, to recognize as valid the customary law with respect to the use of water which had grown up among the occupants of the public land under the peculiar necessities of their condition; and that law may be shown by evidence of the local customs, or by the legislation of the state or territory, or the decisions of the courts. The union of the three conditions in any particolar case is not essential to the perfection of the right by priority; and in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, must necessarily control.

§ 163. Legislation of Montana on the right to running waters.

This law was in force when the plaintiffs in this case acquired their right to the waters of Avalanche creek. There was also in force an act of the territory, passed on the 12th of January, 1865, to protect and regulate the irrigation of land, which declared in its first section that all persons who claimed or held a possessory right or title to any land within the territory on the bank, margin or neighborhood of any stream of water should be entitled to the use of the water of said stream for the purpose of irrigation and making said claim available to the full extent of the soil for agricultural purposes." Another section provided that in case the volume of water in the stream was not sufficient to supply the continual wants of the entire country through which it passed, an apportionment of the water should be made between different localities by commissioners appointed for that purpose. This last section has no application to the present case, for it is not pretended that there was not water enough in the district where Avalanche creek flows to supply the wants of the country, and the section itself was repealed in 1870. Session Laws of 1865, 367.

In January of that year another act was passed by the legislature of Montana upon the same subject, which recognizes the right by prior appropriation of water for the purposes of irrigation, and declares that all controversies re

specting the rights to water under its provisions shall be determined by the date of the appropriation as respectively made by the parties, and that the water of the streams shall be made available to their full extent 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 former 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.” Session Laws of 1870, 57.

Several decisions of the supreme court of Montana have been cited to us recognizing the right by prior appropriation to water for purposes of mining on the public lands of the United States, and there is no solid reason for upholding the right when the water is thus used, which does not apply with the same force when the water is sought on those lands for any other equally beneficial purpose. In Thorp v. Freed the subject was very ably discussed by two of the justices of that court, who differed in opinion upon the question in that case, where both parties had acquired the title of the government. The disagreement would seem to have arisen in the application of the doctrine to a case where title bad passed from the government, and not in its application to a case where neither party had acquired that title. In the course of his opinion Mr. Justice Knowles stated that ever since the settlement of the territory it had been the custom of those who had settled themselves upon the public domain and devoted any part thereof to the purposes of agriculture, to dig ditches and turn out the water of some stream to irrigate the same; that this right had been generally recognized by the people of the teritory, and had been universally conceded as a necessity of agricultural pursuits. “So universal,” added the justice, “bas 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." 1 Montana, 652, 665.

We are satisfied that the right claimed by the plaintiffs is one which, under the customs, laws, and decisions of the courts of the territory, and the act of congress, should be recognized and protected.

Decree affirmed.

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Opinion by HILLYER, J.

STATEMENT OF Facts.— This suit was commenced on the 4th day of August, 1871, to enjoin the defendant from an alleged wrongful diversion of water from Carson river. Albert Ferris having since the commencement of the suit acquired the interest of Peter Lightle, one of the original defendants, has been substituted as a defendant. Lightle answered separately, and the present decision involves only the questions at issue between the complainant and the defendant Albert Ferris. This is one among several causes instituted by the complainant against the numerous residents along the Carson river, in Carson valley, and has been submitted as in several respects a test case. that in the spring of 1861 B. F. Wheeler and others located as a possessory claim the land upon which the Merrimac mill is situated. In May of that year the construction of a mill was commenced, and it was completed in September following. A dam and mill-race for conducting the water to the mill were


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