Then Mortimer promulgates this statement of June 17th. It looks much as if he considered that he had made himself safe from a sentence for murder in the first degree, and then used one more effort to save his accomplice. If a new trial is to be granted on such showing, there is nothing to prevent Mortimer from playing battledore and shuttlecock with the Field case for all time. The Mortimer confession came to the district court in such questionable shape, and so utterly discredited by everything in the case, that we cannot say that the learned judge of the district court was wrong in discarding it.

Finding no error in the case, it is ordered that the judgment be affirmed. It appearing that a respite has been granted by the governor until Friday, July 13, 1894, in order that defendant might present his appeal in this court, it is further ordered that the judgment of the district court be carried into execution as provided in section 377 of the criminal practice act. Remittitur forthwith. Affirmed.

PEMBERTON, C. J., and HARWOOD, J.,

concur.

(14 Mont. 484)

KLEINSCHMIDT et al. v. GREISER et al. (Supreme Court of Montana. June 25, 1894.) IRRIGATION APPROPRIATION ABANDONMENT

-

SUBSEQUENT APPROPRIATIONS.

1. Where one constantly uses water appropriated for his land, but from time to time diverts it through different ditches, the abandonment of one ditch does not constitute an abandonment of the water right, so long as the water continues to be diverted through another ditch.

2. Where one's appropriation of water is not more than enough for his lands available for irrigation, his appropriation is not cut down, by the subsequent appropriation of another, to an amount sufficient to irrigate the land he had already under cultivation.

Appeal from district court, Lewis and Clarke county; H. R. Buck, Judge.

Action by T. H. Kleinschmidt and another against Gus. Greiser and others. Judgment for plaintiffs. Defendants appeal. Reversed.

Shober & Rasch, for appellants. Toole & Wallace, for respondents.

PER CURIAM. The purpose of this action is to adjudicate and determine a controversy between plaintiffs and defendants regarding their priority of right, by appropriation, to use the waters of Prickly Pear creek and its tributary, Cañon creek, situate in Lewis and Clarke county, for irrigation of agricultural lands adjacent thereto. Plaintiffs allege appropriation about November 11, 1882, of 4,000 inches of water from Cañon creek, a tributary of Prickly Pear creek, di verted by means of a dam and ditch, whereby that quantity of said water is conveyed to the lands of divers persons, who own said

dam and ditch in common; that such appropriation on the part of plaintiffs is prior to defendants' appropriation of the waters of said creek; that defendants have wrongfully interfered with and removed said dam, thereby preventing plaintiffs' diversion of the waters from said creek, and threaten to continue so to do, thus depriving plaintiffs of the use and enjoyment of their alleged prior right to the use of said waters. Wherefore, they seek judgment establishing their alleged right as prior to that of defendants, with permanent injunction forbidding defendants' interference therewith. Defendants, by answer, allege appropriation and diversion of diverse quantities of the waters of Prickly Pear creek by them, respectively, or their predecessors, aggregating 1,900 inches, according to statutory measurement, all of which appropriations on the part of defendants are alleged as of dates several years prior to the appropriation by plaintiffs. Defendants also allege that their several appropriations were and are necessary for the irrigation of the agricultural lands owned by them, respectively. The jury sitting in the trial appear to have returned findings satisfactory to defendants, awarding them, sev. erally, about the amount of water claimed prior to plaintiffs' appropriation; but the court modified the findings of the jury, and supplemented the same by some further findings, whereby the quantity of water found by the jury to have been appropriated by defendants, prior to the appropriation by plaintiffs, was diminished to 320 inches, distributed among them as follows: Greiser, 60 inches by appropriation of 1871; Leedy, 40 inches by appropriation of 1871, and 40 inches by appropriation in 1868; Kenck, Duffy, and Coppler, jointly, 180 inches by appropriation March 1, 1882. Following those appropriations, in order of time, the court found plaintiffs appropriated 1,760 inches of water of said creek, necessary for their use in the irrigation of their agricultural lands. There were some further appropriations found in favor of defendants, but of dates subsequent to the appropriation by plaintiffs. Decree was entered accordingly. Defendants appeal, insisting that the court erred in several points specified, all of which have been carefully considered in the light of the record.

The first proposition urged by appellants is that, notwithstanding this case is properly classified as in the nature of an action in equity, the court is bound, by virtue of the peculiar provisions of section 250, Code Civ. Proc., to make its decree in conformity with the verdict of the jury. This proposition has been several times argued to this court, and given due consideration, resulting on each occasion in the conclusion, remarked in Arnold v. Sinclair, 12 Mont. 248, 29 Pac. 1124, that it will not be presumed, from any devious or uncertain language, that the legis

lature undertook to prune away one of the most distinctive and important jurisdictional functions of the equity court; and that when a statute is found, clearly expressing that intention, it will be time enough to inquire whether the legislature possessed power to that end.

Passing to a consideration of the points of error specified in relation to the finding of fact, we find that the record, which purports to contain a transcript of all the evidence introduced, does not disclose evidence sufficient to support the finding by the court that de fendant Greiser abandoned, in the year 1877, all but 60 inches of his original appropriation of the waters of said creek. According to the evidence shown by the record, defendant Greiser constantly used the waters appropriated for his ranch, but from time to time diverted the same through different ditches, and in 1877 he abandoned an older ditch formerly used for the same purpose. This does not constitute abandonment of his water right, or any part thereof, not does any evidence in the record support such finding. Nor is there evidence in the record sufficient to warrant the finding by the court to the effect that defendants Duffy and Coppler did not acquire an interest in the Tierney ditch until May, 1885. The undisputed evidence as disclosed by the record, shows that they acquired an interest in said Tierney ditch in June, 1882, and that testimony is corroborated by the joint notice of appropriation of the waters of said creek by Tierney, Duffy, and Coppler, introduced in evidence, which bears date May 25, 1882, and declares their appropriation as of that date. Nor is there evidence in the record sufficient to warrant the finding that, after Duffy and Coppler acquired interests in said Tierney ditch, they enlarged the same to a capacity sufficient to divert the water by them appropriated. The testimony of witnesses on this point is èmphatically to the contrary effect, except that of witness Ford, who, under contract, for the owners, continued the excavation of said ditch after Duffy and Coppler acquired interests therein. In his testimony he describes his work upon said ditch, and says that he enlarged or widened the excavation of a portion of the ditch, where the work of Tierney in the excavation thereof was left off; that Tierney directed Ford to widen the ditch in that part, explaining that the last of his excavation was done in the winter, and was not made of sufficient width at that part. But Ford distinctly testifies that it was only the portion of the excavation towards the end, where Tierney left off, that he enlarged. His testimony, under such explanation, be comes consistent with that of other witnesses on this point, all of which is insufficient to support the finding that the part of said ditch already excavated by Tierney was enlarged after Duffy and Coppler acquired interests therein. The effect of the finding by the court on this point would place the appro

priation of Duffy and Coppler as of May, 1883, subsequent to that of plaintiffs.

There is another finding by the court to the effect that only a portion of certain ranches owned by defendants were available for irrigation, and apparently upon that theory the quantity of water allotted to them by the findings of the court was very considerably diminished from the amount appropriated and diverted through their ditches, and claimed to be necessary to irrigate their lands. It is always proper to inquire into the question of the necessity and ability to use the quantity of water appropriated and diverted. If it should appear from proper evidence that a portion of defendants' lands are so situate that the water claimed by such defendants could not be diverted thereto, or that the land is of such character or condition as that crops of grass, grain, or vegetables could not be grown thereon with the aid of irrigation, it would seem proper to take such conditions into consideration, in determining the amount of water to which such defendants were entitled. But the evidence in this case does not warrant the finding that only the portions of the lands owned by defendants, as designated by the court, were "available for irrigation." It does not appear from the evidence that there was contention by the litigants that certain portions of the ranches of defendants were of such character, or so situate, as not to be available for irrigation. There was much evidence introduced on the question as to the quantity of water necessary, per acre, to ir rigate certain lands owned by defendants, and how the quantity varied when applied to different characters of soil. There was also considerable evidence introduced on the inquiry as to how much land defendants had under cultivation at the date of plaintiffs' appropriation out of the waters of said creek, in the fall of 1882; and some findings by the court tend to indicate that it proceeded, in determining the quantity of water to which defendants were entitled prior to plaintiffs' appropriation, on the theory that defendants were entitled to hold, prior to plaintiffs' appropriation, only a sufficient quantity to irrigate the lands which defendants actually had under cultivation at the date plaintiffs initiated their appropriation. It is not shown with clearness and certainty that the court proceeded on such theory, but certain findings by the court, stating particularly that the defendants named had under cultivation at the date of plaintiffs' appropriation a stated acreage of land, tend to indicate that the court proceeded on the theory that de fendants' appropriation of water prior to plaintiffs should be cut down to a quantity sufficient to irrigate the land of defendants actually cultivated at that time. Such theory, if followed, is, we think, without doubt, erroneous. Thereby a prior appro priator of water would be cut down to the quantity necessary to irrigate the land he

actually had under cultivation when the subsequent appropriation was made, although the first appropriator's land was all available for production of crops by aid of irrigation, but, at the time of making the appropriation of water necessary for its irrigation, he had not subdued all of it to the plow. The priority under such rule would depend largely upon the time appropriators brought their lands under cultivation, and not upon the priority of appropriation and diversion of the water necessary to irrigate the land owned by the appropriator, as the law provides.

A further objection urged by appellants is that the decree maintaining the dam against defendants' interference, would in certain seasons, in effect, withhold all the water of said creek from appellants,-even that awarded them by the decree prior to the appropria- | tion of plaintiffs. Respondents answer this objection by admitting that the intention of the decree was to have the dam so constructed and operated as to allow the volume of water awarded defendants, prior to the right of plaintiffs, to pass it at all times, if so much water flowed in the creek, and concede that if the decree is not thus conditioned it may be modified to that effect. Appellants also urge that the decree does not provide at what point they may take the water awarded to them in several amounts. It appears to be agreed that the appropriator of water should have the amount to which he is entitled at the place where his ditch taps the creek, and appellants concede that if the decree in this case does not provide that respondents shall allow sufficient water to flow past their dam to give the appellants, at the points where their several ditches tap said creek, the amount of water awarded them, the decree may be modified to so provide. In our opinion that would be a proper provision, and the decree should be conditioned accordingly.

For the reasons above set forth the judgment entered ought to be reversed, and the case remanded to the trial court for revised findings in conformity with the views herein expressed, upon the evidence already before the court, supplemented by such other evidence as may be necessary to ascertain and determine the respective rights involved. The order of this court will be entered accordingly. Reversed.

HARWOOD and DE WITT, JJ., concur.

(14 Mont. 476)

STATE ex rel. COLEMAN et al. v. DISTRICT COURT OF THIRD JUDICIAL DISTRICT IN AND FOR DEER LODGE COUNTY.

(Supreme Court of Montana. June 11, 1894.)

MINING-ROADS.

The provisions of Comp. St. § 1495 et seq., for obtaining a road to a mine are not repealed by Const. art. 3, § 15, providing that private roads may be opened in the manner to be

prescribed by law, but the necessity and damages shall be first determined by a jury, such constitutional provision merely modifying the statutes so far as they provided for such determination by commissioners; the enabling act and Const. art. 20, § 1, providing that the territorial laws not inconsistent with the constitution should remain in force till altered or repealed.

State of Montana, on the relation of William Coleman and Thomas McGuire, against the district court of the third judicial district in and for Deer Lodge county.

Geo, B. Winston and W. W. Dixon, for relators. C. P. Connelly, for respondent.

(2)

PER CURIAM. Application for writ of mandate to the judge of the district court of the third judicial district within and for Deer Lodge county. It appears that relators filed with the clerk of said court a duly-verified petition, as follows: "In the District Court of the Third Judicial District of the State of Montana in and for the County of Deer Lodge. William Coleman and Thomas McGuire, Plaintiffs, vs. William Lorenz, Defendant. The plaintiffs complain of the defendant, and allege: (1) That, at all the times hereinafter mentioned, the plaintiff William Coleman had declared his intention to become a citizen of the United States, and that the plaintiff Thomas McGuire was, at all the times hereinafter mentioned, a citizen of the United States, and that the plaintiffs were, at all the times hereinafter mentioned, and are now, citizens and residents of the county of Deer Lodge in the state of Montana. That the plaintiffs are, and have been since April 4, 1894, the owners of, and are in the peaceable and quiet possession of, the following described mining claim, situated and lying in the county of Deer Lodge, in the state of Montana, to wit, the Alice Placer claim, which is located about five miles from the city of Anaconda, in said county of Deer Lodge, in a westerly direction, and on Warm Springs creek, and in section number twentyfive, in township number five, north of range twelve west. (3) That the defendant occupies a certain mining claim, located just east of the mining claim of the plaintiffs above described, which is described as follows, to wit: Beginning at a point from which a certain notification stake set upon the premises bears south 62 degrees east, 400 distant (said notification stake is located north 30 degrees 55 minutes west from the quarter section corner, between sections 25 and 36, in township five, north of range twelve west, and is 1,424 feet distant therefrom), thence north 28 degrees east 700 feet, thence south 62 degrees E. 800 feet, thence south 28 degrees W. 1,700 feet, thence N. 62 degrees W. 800 feet, thence N. 28 degrees E. 1,000 feet to the place of beginning, the said claim being situated in the southwest quarter of section 25, in township five, north of range twelve west, in the county of Deer Lodge, in the state of Montana. (4) That the location of the said claims with

reference to each other is shown by and on the map hereto attached, marked 'Exhibit A,' and made part hereof, and is hereby referred to for a more particular description of the said claims. (5) That the said mining claim of the plaintiffs is so situated that it cannot be conveniently worked, and in fact cannot be worked at all, without a road thereto, which road must necessarily pass over and across the said mining claim occupied by the defendant, above described, which road must be at least twelve feet in width, and must pass over the said claim occupied by the said defendant, from east to west, the said road being particularly described and marked out on the map hereto attached, marked 'Exhibit A,' and made a part of this petition, the said proposed road being designated on the said map as 'Road No. 1.' (6) That the said plaintiffs heretofore, on the 9th day of April, 1894, at the city of Anaconda, in the county of Deer Lodge, in the state of Montana, requested of the said defendant that he give them, the said plaintiffs, a road and right of way over and across the said mining claim occupied by him, for the purpose of working the claim of the plaintiffs, and on the said day tendered to the said defendant the sum of one hundred and fifty dollars to cover all damages which he, the said defendant, might suffer by reason of the said road passing over and across the said claim occupied by him, but the said defendant refused to accept the said sum, and refused, and still does refuse, to allow the plaintiffs to pass over the said claim occupied by him, and said right of way has not been and cannot be acquired by agreement between the plaintiffs and defendant herein. (7) That unless the plaintiffs are granted a right of way over and across the said claim occupied by the said defendant it will be impossible for them to work the said claim, for the reason that the only accessible route to their said claim is over and across the said claim occupied by the defendant. (8) That the plaintiffs are now working on their said claim, and intend in good faith to work the same. Wherefore, the plaintiffs pray that the court award them a road and right of way over and across the said claim occupied by the defendant, for the purpose of enabling them, the plaintiffs, to work their said claim; that the court appoint three disinterested persons, residents of the said county of Deer Lodge, to assess the damages resulting to the defendant, and the said claim occupied by him, by reason of the said road passing over the said claim, and for such other and further relief as to the court may seem proper. Geo. B. Winston, Attorney for Plaintiffs," and thereupon presented the same to and prayed the judge of said court to issue a citation to defendant, and otherwise proceed to determine the necessity for, and the damage occasioned by, and award, the right of way on payment of such damage, according to the prayer of said petition, and pursuant to the provisions of sections 1495 et seq., div.

5, Comp. St. That the judge of said court on consideration of the petition in connec tion with the provisions of said statute, and section 15, art. 3, of the state constitution, declined to proceed in the premises, holding that said statute was abrogated by the provisions of the constitution cited; and that, the legislature having since made no provision for opening roads pursuant to the terms of the constitution, the court had no jurisdiction to grant the relief prayed for.

On consideration of this question, somewhat prepared for by consideration of other similar, and as serious, questions presented to this court since the inauguration of the state government under the constitution, we reach the conclusion that the view held by the learned judge of the district court should not be sustained. It clearly appears from the provisions made in that regard that it was the policy of both congress, as manifested in the enabling act, and of the framers of the constitution, to preserve in force the body of the statute law on the various subjects of governmental regulation, enacted through a course of years of territorial exist. ence, as statutes of the state, except in so far as those statutes were "modified or changed" by the enabling act, or by the constitution of the state. See Enabling Act; also, Const. art. 20, § 1. We think no fact in the scheme for change from territorial to state government is more plainly manifest than that such was the policy of congress and the constitutional convention. This construction keeps well intact the system of government, and the body of the statutes necessary thereto, until the same are repealed or supplanted by other future enactments; whereas, the other view would wholly sweep away the statute law on any subject wherein the constitution made a change in any respect, and would leave that subject void of legislation until the necessary statute law was supplied by future enactments. Thus, under that view, the grand Jury system provided for by the statute, instead of being merely modified by reading into the statute the constitutional provision of "seven" in place of "sixteen," would have wholly disappeared from the statute until replaced by legislative action. State v. Ab Jim, 9 Mont. 167, 23 Pac. 76; State v. Kenney, 9 Mont. 228, 23 Pac. 733. This would have been destructive of government, and extremely disastrous to the well-being of the people of this jurisdiction. Upon the subject immediately under consideration the constitution provides that the question of necessity for, and amount of damages occasioned by, the opening of such road, shall be determined by a jury, instead of being determined by the judge and commissioners, as provided by statute. Otherwise the statute provides a method of procedure in such cases not inconsistent with the constitution. It gives jurisdiction to the court, and prescribes a method of procedure, but the constitution modifies this statute by eliminating the com