Midkiff v. Kincheloe , 127 Mont. 324 ( 1953 )

MB. JUSTICE ANGSTMAN:

Plaintiff owns land in Bosebud county requiring artificial irrigation. He has used the land since 1916 as a livestock ranch. He contends that he is entitled to the water, of Home creek which runs through his ranch but which is a dry creek except that it flows from the spring runoff of melting snows and when the rainfall is sufficient. His contention is that he has used the waters of the creek since 1916 by a system of levees or dikes for the irrigation of 80 acres. Defendant in June 1949 built a dam across the creek above the point where it enters plaintiff’s land, the result of which is to impound some of the water in a reservoir depriving plaintiff of the use thereof. This action was to establish plaintiff’s right to the use of the water and to enjoin defendant’s interference therewith.

The court found in favor of plaintiff and that he was entitled to the water of Home creek for the irrigation of 80 acres of land and ordered that defendant install a headgate at the bottom of his dam to consist of a pipe 30 inches in diameter or other aperture of equivalent size, or to open the dam.

Defendant has appealed from the judgment.

The court’s findings, which were made after a view of the premises, may be summarized as follows: That plaintiff has owned the land comprising his ranch since 1916 which among other lands includes 80 acres of meadow or hay land, and that the entire farm is operated as a single farm unit in the ranching and livestock,business;.that the land is arid in character,- requiring artificial irrigation for the production of hay; that Home creek flowing from east to west crosses plaintiff’s land; that water' flows in the creek only in the spring of the year as a result of fast melting snows and at other times when the rainfall is sufficient; that creek originates about 6 miles east of plaintiff’s land and after crossing his land flows into the Musselshell river about four miles west of his land; that defendant operates a ranch about one mile east of plaintiff’s land; that neither party or their predecessors in interest filed a water right appropriation as permitted by statute; that in 1916 plaintiff began the construction of a system of dikes or dams on Home creek as it enters his 80 acres of meadow land; that each dike when completed would spread the water onto the land above the dike to the approximate depth of one foot; that the water after reaching the approximate depth of one foot would then escape in runways at each end of the dike or through openings or pipes placed in the center of the dike and thence flow down the creek until it reached the next dike where similar action would take place, irrigating the land between that dike and the one above it; that there were seventeen of these dikes constructed or commenced between 1916 and the time this action was started in August 1949; that some of the dikes along the west end of plaintiff’s project were completed after the action was commenced, but most of them were constructed and the water diverted and put to a beneficial use prior to the construction of defendant’s dam and reservoir; that some of the original dikes were, repaired or enlarged from time to time by plaintiff in the use of his water right; that defendant’s dam was constructed in June 1949 about a mile and a half above plaintiff’s land; that it was constructed with a spillway so that it would hold in storage four acre-feet of. water before the water would flow over the spillway; that defendant’s dam provided water for watering livestock only; that the dam obstructs and interferes with water to which plaintiff, is entitled.

■ As conclusions of law the court found'that plaintiff has a prior and superior right to the water of Homé creek for the irrigation of his 80 acres of meadow land; that defendant is a subsequent appropriator and that he did not sustain the burden of proving that his dam does not interfere with plaintiff’s prior right; that defendant should be required to install a headgate sufficient in size to let the water through to which plaintiff is entitled, and permit defendant to “impound or gather the flow of said water in Home creek only when such action will not prevent the plaintiff from receiving or reducing his receipt of the water to which he is entitled. ’ ’ The court fixed the size of the circular pipe at 30 inches in diameter or any other aperture of equivalent size which the evidence shows would be sufficient to deliver 80 acre-feet of water in 24 hours.

The principal contention of defendant is that the court erred in its finding as follows: ‘ ‘ That while some of the dikes along the west end of plaintiff’s project were completed after the filing of this action, most of them were constructed and the water diverted put to a beneficial use by the plaintiff prior to the construction of defendant’s dam and reservoir.”

It is conceded defendant constructed his dam in June 1949. Some of plaintiff’s dikes were not constructed until the fall of 1949. On cross-examination plaintiff testified that four of his dikes were constructed after August 1949. Eight of the others were either worked on, completed or extended in length after defendant’s dam was completed. Witnesses for defendant gave practically this same version of the facts.

Plaintiff in rebuttal testified that only three new dikes were constructed in 1949, but he did not state at what time in 1949 they were constructed. It must be regarded as established that at least three of his dikes were constructed after defendant’s dam was built. Several others were enlarged, repaired or completed after defendant’s dam was completed.

Plaintiff testified that from his first dike constructed in 1916 he irrigated five or six acres. At some time he used brush dams to raise the water level. He increased the size of his project from year to year. In explaining what he meant by completing a dike in 1949 he meant extensions or repair work and not a new system. He said dikes had existed there before, but they were enlarged or repaired.

As before noted neither party to this action filed the statutory notice of appropriation and hence neither party is entitled to benefit from the doctrine of relation back which is a doctrine that may be relied on only by one who has complied with the statute. R. C. M. 1947, sec. 89-812.

Defendant takes the view that since plaintiff had not completed his entire irrigation project until after defendant had completed his stock water dam he acquired no prior right.

With this we do not agree. Certainly to the extent that plaintiff’s project had been completed before defendant’s dam was constructed plaintiff had a prior right. The rule is that he who first diverts the water to a beneficial use has the prior right thereto where the right is based upon the custom and practice of the early settlers as here, and where there was no compliance with the statute. Murray v. Tingley, 20 Mont. 260, 50 Pac. 723; Bailey v. Tintinger, 45 Mont. 154, 122 Pac. 575; Clausen v. Armington, 123 Mont. 1, 212 Pac. (2d) 440.

It is unquestioned that plaintiff had completed many of his dikes and diverted water to much of his 80 acres before defendant’s dam was constructed. To the extent that plaintiff had made use of the water before defendant’s dam was constructed plaintiff had the prior right. The only purpose, however, of extending some of plaintiff’s dikes as shown by the evidence was to spread the water over more of his land. Likewise the building of new dikes was to spread the water over more land, or to increase the amount of water used over the land between the new dike and the one immediately above it.

The record shows that some water was used by plaintiff on the extreme west end of his ranch before the dikes were built in that area, but the building of the dikes increased the amount of water that would be spread over the land above it and between the new dike and the one immediately above it. To the extent that plaintiff increased the amount of water that he put to a beneficial use after defendant’s dam was constructed, his rights are inferior to those of defendant. On the record before us we cannot determine how much additional acreage plaintiff irrigated as a result of the extension or enlargement of his dikes or the building of new dikes after defendant’s dam was constructed, nor can we determine how much additional water was applied to a beneficial use by plaintiff as a result of the enlargement or extension of his project after defendant’s dam was completed.

It is our opinion that additional evidence should be received bearing upon those features of the case and appropriate order made in that connection. The court properly held that defendant has a right to capture and retain whatever water he needs whenever plaintiff’s rights have first been satisfied. This is nothing more than permitting defendant to capture water that would otherwise be wasted. We think, however, that instead of a pipe being placed at the bottom of defendant’s dam, the flow of the water should be controlled by flash boards or other device to the end that defendant may capture and retain in his reservoir whatever water may flow in the stream at a given time in excess of the rights and needs of plaintiff.

The cause is remanded for further proceedings in accordance with the views herein stated.

MR. JUSTICES BOTTOMLY, PREEBOURN and ANDERSON, concur.