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[No. 3.

Vol. JI.]


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was entitled to thirty-five inches of the water, and that as against the defendants, saving this amount, the plaintiffs were entitled to two hundred and fifteen inches of the water, and decreed an injunction against any diversion of the water by the defendants which would prevent its flow to this extent in the stream to the ditch of the plaintiffs.

In rendering this decree, the court disregarded a portion of the findings of the jury and adopted others, and this action was approved by the supreme court of the territory, and constitutes one of the errors assigned here for the reversal of its decree.

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 hearing 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 which the court will give to the questions raised by the pleadings, when the case is called for trial or hearing, whether it will submit 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 which 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. This 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

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(No. 3.

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judgment they were not supported by the evidence. 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. Sill v. Saunders, 8 Cal. 287; Goode v. Smith, 13 Ib. 81;

Duff v. Fisher, 15 Ib. 375. See also Koppikus v. State Capitol Commissioners, 16 Ib. 248, and Weber v. Marshali, 19 Ib. 447.

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 government without at the same time invalidating his own claim.

In the late case of Atchison v. Peterson 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 to 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 natural 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 f 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 undis

(No. 4.

Vol. II.)


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turbed 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 recovery of mining claims; recognizing canals and ditches which 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 over 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 pretence 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.

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 flour-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 pro- . tected 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 particular 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.

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


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[No. 4.

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 is 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, p. 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 respecting 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 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." Session Laws of 1870, p. 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 Thorpe v. Tweed, 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 had 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 liad 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, and had been universally conceded as a necessity of agricultural pursuits. “ So universal," added the justice, “has 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 Rep. 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. We, therefore, affirm the decree of the supreme court of the territory.

ameficial purpose. iustices of that court: had acquired

Vol. II.]

ROGERS V. Tullos.

(No. 4





It is competent to show by parol evidence that the word “dollars,” used in a judgment

rendered by a court within the Confederate States, during the time of their de facto existence and authority, means dollars issued by the government in power at the time the judgment was rendered, to wit: dollars of the government of the Confederate States.

Mr. A. H. Handy, for appellants.
Messrs. J. A. Brown & A. G. McLaurin, contra.
The facts are stated in the opinion.

TARBELL, J. The question for determination in this case is, as to the right to show by parol that the term "dollars,” used in the annual and final accounts of administrators and guardians, during the late Confederacy, means other than the constitutional currency of the United States. Wm. H. Brown deceased in 1859. In 1861, J. B. Rogers and T. B. Rogers were appointed administrators de bonis non of the estate of deceased. In November, 1861, these administrators were directed by the probate court to sell certain of the personal property belonging to the estate on a credit of twelve months. They reported the sale as having taken place December 13, 1861. Reference is made in their report to an exhibit or account of sales filed therewith by which it appears that the aggregate amounted to $1,514.81. And the report says: “We, as administrators, further report that all of said purchasers have given note with good and approved security for the payment of the sums bid by them respectively for said personal estate.”

Another sale was made January 6, 1862, of refuse articles, aggregating $15.15. The first annual account of these administrators was rendered in April, 1863, wherein they charge themselves with the receipt on account of the estate of divers sums, from different persons, up to January 6, 1863, amounting to $785.62, and that they had paid debts to the amount of $412.46, leaving a balance in their hands belonging to the estate of $373.16.

A second annual account was rendered in March, 1864, stating receipt of $983.58, and at the same time the administrators reported the hiring of slaves, for 1864, and notes taken with good and sufficient security payable on or before January 1, 1865, which had amounted to $526. At the same time the sum of $413.87 was reported as paid out.

The next account was made in 1867, when the administrators charge themselves with the receipt of $115.

In 1868, the receipt of $50 is acknowledged, and $2.88 charged as paid out.

At the November term, 1869, of the probate court, the petition of the administrators sets forth their dealings in United States and Confederate currency, respectively :

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