Irion v. Hyde , 110 Mont. 570 ( 1940 )

I concur generally in the foregoing dissent of Mr. Justice Angstman, but desire to make some further observations.

The parties to this action were before this court in case No. 7796, decided June 9, 1938. (Irion v. Hyde, 107 Mont. 84,81 P.2d 353.) In that case the defendant did not challenge prior appropriation by the plaintiff but set up superior right by adverse user. The trial court sustained such contention of the defendant and denied the plaintiff's application for an injunction. On appeal we reversed the district court on the question of the defendant's superior right by adverse user, but being unwilling to direct the destruction of defendant's dam, which plaintiff demanded, remanded the case for further proceedings. In the former case we found the plaintiff had the first right to 656 miner's inches of the waters of Sheep Creek. The water was diverted from the creek by a dam constructed for that purpose but which has no storage capacity of any consequence. Approximately 130 acres of plaintiff's land is capable of irrigation, and about 100 acres were usually irrigated prior to the time defendant constructed his storage dam. The defendant sought and obtained the consent of the plaintiff to build the dam and store water which was clearly a recognition of plaintiff's prior right. The obvious understanding was that the defendant might store such water as the plaintiff did not need or could not divert and apply to a beneficial use. This concession ultimately led to this controversy.

The evidence in the former action is, in so far as it relate to this action, substantially the same, and is, in effect, that there is no outlet to defendant's dam except the diversion ditch used to carry the stored water onto defendant's land; that no water passes the dam except such as finds its way back into the channel of the creek after it has been used to irrigate the defendant's land, some 35 acres. We remanded case No. 7796 in order that the trial court, the trier of the facts in all such cases, might order such further proceedings as he deemed essential to enable him to adjust the matter in accordance with the established rules upon which our opinion was grounded. We understood, of course, that the quick sand formation of the channel of the creek between defendant's storage dam and plaintiff's place of diversion, some nine miles apart, with some 275 pot holes between the two points, involved such difficulties in determining how much water would have to pass the defendant's dam before any useful quantity would reach plaintiff's diversion dam that the trial court would have to display the wisdom of a Solomon to reach any satisfactory conclusion, much less satisfy the litigants. It must be kept in mind that courts cannot save litigants such difficulties in carrying a decree of court into effect as it is obvious will be encountered in the case at bar. All that either the trial court or this court on appeal is empowered to do is to determine controversies between litigants according to the established rules of law, and when the particular controversy is determined such obligations as are placed upon the litigants must be discharged by them.

In the case at bar it is clear that the trial court earnestly attempted to bring about a fair and reasonable adjustment of the controversy, and in its conclusion No. III such an adjustment is outlined and the rights of the parties determined, but the decree, while giving full recognition to the prior right of the plaintiff, does not clearly set out just what the defendant shall do in order to assure the plaintiff against further invasion of his right by the defendant. The plaintiff is entitled to have the flow of water in the channel of the creek made free from every obstruction that impairs his right. The channel must be returned as near as practically possible to its condition before defendant's dam was built so far as the flow of the water is concerned; in order to do this an outlet should be built by the defendant at the bottom of his dam, through which any or all of the water he has impounded may be let down the channel of the creek for the benefit of the plaintiff. This should be proceeded with upon the assumption that defendant's dam has obstructed the flow of the water to the injury of the plaintiff and the evidence so shows, and whether under such conditions as may exist at any particular time the amount of water that defendant lets down is sufficient to reach the plaintiff's place of diversion in any useful quantity is a question in the determination of which all doubts should be resolved in favor of the plaintiff and against the defendant. Such burden is properly imposed upon the defendant in view of the fact that from his acts alone all these questions that adversely affect plaintiff's right have arisen. It is in accordance with general practice for the owner of the prior right to water to turn the water into his own ditches when needed and shut off the flow being taken out by a junior appropriator, if the flow is insufficient for both and under the circumstances here involved I think it would be proper for the plaintiff to regulate the outlet in defendant's dam. Defendant did not assume the right to build the dam until he obtained the permission of the plaintiff thereby recognizing plaintiff's property right in the channel of the stream as the means of conveying the water to his diversion dam, and I am of the opinion that plaintiff acquired such right in the channel as entitled him to access to the channel to see that his prior right is not impaired, and for the further purpose of opening and closing the headgate or outlet in defendant's dam, taking care not to exercise such right to the extent that it would amount to trespass.

The defendant may not be required to release any water impounded out of the excess over the needs of the plaintiff. In such case water impounded takes on a character different from water diverted from a live stream. One who diverts water from a running stream has a property right in the use of such water only, but when water is legally impounded in a reservoir one who has captured it has a property right in the corpus, having as complete title thereto as to his cow or horse. Such water, being acquired, without invading another's right, need not be released, but in determining the amount so acquired that one shall retain when additional water is impounded that the owner of the prior right wants and needs, a measuring device would have to be installed and the volume in the reservoir noted from time to time, and the amount impounded increased only when it could be impounded with the plaintiff's consent. Such conditions now imposed upon defendant would involve nothing more than the implied obligations he assumed to the plaintiff when he obtained the plaintiff's consent to construct the dam in the beginning.

Rehearing denied September 27, 1940.