Statement of the case.

acquired by prior appropriation, as against parties not having the title of the government. The right, exercised within reasonable limits, having reference to the condition of the country, and the necessities of the community, is entitled to protection. This rule obtains in the Territory of Montana, and is sanctioned by its legislation.

5. By the act of Congress of July 26th, 1866, which provides "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," the customary law with respect to the use of water, which had grown up among occupants of the public land under the peculiar necessities of their condition, is recognized as valid. 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, will control.

APPEAL from the Supreme Court of the Territory of Montana. The case was thus:

The organic act of the Territory just named recognizes the distinction between the jurisdictions of law and equity, but requires that proceedings in both be in the same court.

By a statute of the Territory regulating proceedings in such cases in courts of the Territory, only one form of civil action is allowed; and it is there enacted that "issues of fact shall be tried by a jury, unless a jury is waived or a reference ordered," in a way which the statute provides.

In this state of the law Gallagher and others filed a bill in one of the District Courts of the Territory, against Basey, Stafford, and others, praying for an injunction to restrain them from diverting the water of a stream known as Avalanche Creek, in the said Territory, to which they, the plaintiffs, asserted a right by prior appropriation for the purposes of irrigation. They alleged that in the year 1866 they and their predecessors in interest took up for settlement and cultivation certain farms, designated by them as "ranches," on the public lands of the United States near the creek, in the county of Meagher, in that Territory; and that they or their predecessors in interest had ever since occupied and

Statement of the case.

cultivated the same; that it was necessary to irrigate the land for its successful cultivation, and to raise grain, hay, and vegetables; that they accordingly, during that year and the following spring, constructed, at great labor and expense, a ditch by which they intersected the creek a short distance from its junction with the Missouri River, and conveyed its water to their farms and used it for irrigation; that at this time the water was not appropriated by any person, and was subject to appropriation by them; that by their ditch they appropriated the water to the extent of five hundred inches, according to the measurement of miners; that this amount was necessary to the successful cultivation of the land, and by means of it they and their predecessors in interest were enabled to cultivate the farms and raise large and valuable crops of grain, hay, and vegetables.

They further alleged that subsequent to this appropriation by them, and during the years 1867 and 1870, and the intervening period, the defendants erected dams across the creek above the head of their ditch and diverted the water of the stream, and thereby wholly deprived them of its use and enjoyment, preventing their cultivation of the farms and rendering them useless; that had the water been permitted to flow, unobstructed by the dams of the defendants, there would have been a sufficient supply for irrigating and cultivating the farms. They therefore sought the aid of the court to restrain the defendants from diverting the water, except so much as might be in excess of the five hundred inches appropriated by them.

To this complaint the defendauts demurred, on the ground, 1st, that the cause of action alleged was barred by the statute of limitations; and, 2d, that the complaint did not state a cause of action. The record did not disclose what disposition was made of the demurrer.

An answer was subsequently filed which denied the several allegations of the complaint, except the one which averred the possession by the plaintiffs of their farms.

The record was a very defective one, and presented the case obscurely. Gathering, however, what could be gath

Statement of the case.

ered from its imperfect statements, it would seem that at the May Term of the District Court of the Territory in 1871, previous to the final hearing, which was had at the subsequent July Term, a jury was called in the case, to which certain questions were submitted and its answers taken. The jury found substantially that parties by the name of White and Torvais, prior to September or October, 1866, had appropriated the water of the creek to the extent of thirty-five inches; that these parties, during one of those months, gave the plaintiffs and their predecessors the right to connect with their ditch, and to extend and enlarge the same; that the plaintiffs and their predecessors commenced such enlargement during those months, and increased the capacity of the ditch to two hundred and fifty inches; that White and Torvais afterwards, in 1867, sold their waterright and ditch to the defendant, Stafford; that the defendant, Basey, had no interest in privity with the other defendants, and diverted the water for his own use by agreement with the plaintiffs, and that neither of the other defendants had diverted water to the injury of the plaintiff's previous to the commencement of the action.

Upon these special findings both parties moved the court for judgment; the defendants, that the complaint be dismissed; the plaintiffs, that a decree pass in their favor. On these motions the court heard the whole case "on the pleadings, evidence, and proceedings therein, and the findings of the jury," and rendered a decree adjudging that the defendant, Stafford, 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. From this decree an appeal was taken to the Supreme Court of the Territory, and there the decree was affirmed. From that affirmance this appeal was taken.

In rendering the decree, the District Court disregarded a portion of the findings of the jury and adopted others, and

Statement of the case.

this action was approved by the Supreme Court of the Territory, and constituted one of the errors assigned here for the reversal of its decree.

The correctness or incorrectness of the decree appealed from, depended perhaps, in part, upon certain statutes.

They were thus: One was an act of Congress of July 26th, 1866,* which enacted as follows:

"SECTION 9. 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. And the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed."

The other statutes were Territorial acts. The first was an act passed on the 12th of January, 1865, entitled "An act to protect and regulate the irrigation of land in Montana Territory.” The first section of this act thus enacted:

"All persons who claim, own, or hold a possessory right or title to any land, or parcel of land, within the boundary of Montana Territory, as defined in the organic act of this Territory, when those claims are on the bank, margin, or neighborhood of any stream of water, creek, or river, shall 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."

The fourth section was thus:

"In case the volume of water in said stream or river shall not be sufficient to supply the continual wants of the entire country through which it passes, then the nearest justice of the peace shall appoint three commissioners, as hereinafter provided, whose duty it shall be to apportion, in a just and equitable proportion, a certain amount of said water, upon certain alternate weekly days, to different localities, as they may in their judgment think best

* 14 Stat. at Large, 253.

Argument for appellants.

for the interest of all parties concerned, and with a due regard to the legal rights of all."

In 1870 this act of 1865 was repealed and another act was passed, making provision for the construction of ditches and the irrigation of agricultural lands. This enacted in its second, fifth, and sixth sections as follows:

"SECTION 2. Any person or persons, corporation or company, who may have or hold a title or possessory right or title to any agricultural lands within the limits of this Territory, as defined by the organic act thereof, shall be entitled to the use and enjoyment of the waters of the streams or crecks in said Territory for the purposes of irrigation and making said land available for agricultural purposes to the full extent of the soil thereof.

"SECTION 5. In all controversies respecting the rights to water under the provisions of this act the same shall be determined by the date of the appropriation as respectively made by the parties.

"SECTION 6. The waters of the streams or creeks of the Territory may be made available to the full extent of the capacity thereof 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."

In 1871 and 1872, when the statutes of Montana were revised, and a code of laws and practice was established for the Territory, this last act was incorporated into the system and re-enacted as part of it.*

Mr. Montgomery Blair, for the appellants :

The Supreme Court of the Territory erred in affirming the decree of the District Court:

1. Because in rendering that decree the District Court disregarded the findings of the jury, and by the laws of the Territory those findings were conclusive upon the court.

* Laws of Montana; Codified Statutes, 1871 and 1872, p. 498.