Argument for the appellants. In the Territory of Montana only one form of action is allowed, and all distinctions in actions are abolished. And issues of fact are required to be tried by a jury in all cases, unless a jury is waived, or a reference is ordered, as provided for in the act. And the jury are made the exclusive judges of all questions of fact. Now in Taylor v. Person,* a case from North Carolina, in which the distinction between law and equity is fully recognized, but where a statute requires just what the Montana statute requires, it has been adjudged that if the record does not show that the facts had been found by a jury, it is error for which the decree will be reversed. 2. Because the decree proceeds upon the assumption that the appellees acquired a vested right in the water in question by being the first appropriators of it. The law governing this subject is found in the act of Congress of July 26th, 1866. By the terms of that act the right in question is made to depend upon the existence of three several conditions: First, "it must be recognized and acknowledged by the local customs of the Territory;" second, by "the (local) laws;" and, third, "by the decisions of the courts." The fourth section of the act of the Territory of 1865 is inconsistent with the doctrine of right by prior appropriation, and so Chief Justice Wade held in his separate opinion in the case of Thorp v. Freed. It is true that his associate, Knowles, J., differed from him, and that the case was decided on other grounds. In commenting upon the statute mentioned the Chief Justice says: "The whole purpose of the statute was to utterly abolish and annihilate the doctrine of prior appropriation."... "If the section does not mean that there shall be an equal distribution among all the parties concerned in such water, without any regard whatever to the date of appropriation, then I am utterly unable to comprehend the language used." * 2 Hawks, 298. † 1 Montana, 653. Argument for the appellees. Mr. R. T. Merrick, contra: I. The case was a chancery case, and was tried as such, and the decree is in the usual form of decrees in chancery. The issues submitted to the jury were so submitted only to aid the chancellor in ascertaining, from the evidence before him, the ultimate facts upon which to rest his decree. The two jurisdictions of law and equity in Montana are recognized as separate and distinct, and even though one form of action prevail, must be exercised as separate and distinct from each other in all cases, and equitable or legal relief administered according to the rules appertaining to the jurisdictions respectively. II. The first appropriation of the water of a stream passing through the public lands of the United States for some beneficial purpose confers the right to the use and enjoyment of the water to the extent of the original appropriation.* In this case there is no riparian owner except the United States, and the record does not show that either of the parties even occupy along the margin of the stream. The lands being open to appropriation the rule of time is the rule of right, and the first taker is to be protected in his entry and possession. Blackstone says:† "If a stream be unoccupied I may erect a mill thereon, and detain the water; yet not so as to injure my neighbor's prior mill, or bis meadow, for he hath by his first occupancy acquired a property in the current." In Williams v. Morland, and in Liggins v. Inge,§ and in the earlier cases in Massachusetts and Connecticut a similar principle was announced. Later adjudications in England establishing a different doctrine rest upon the fact that the * Irwin v. Phillips, 5 California, 140; Bear River Co. v. The York Mining Co., 8 Id. 332; Butte Canal Co. v. Vaughn, 11 Id. 152; McDonald v. Bear River Co., 13 Id. 220; Phoenix Water Co. v. Fletcher, 23 Id. 482; Hill v. Smith, 27 Id. 476; Smith v. O'Hara, 43 Id. 371; Lobdell v. Simpson et al., 2 Nevada, 274; Ophir Mining Co. v. Carpenter, 4 Id. 534; Hobart v. Ford, 6 Id. 80; Dalton v. Bowker, 8 Id. 201. † 3 Commentaries, 403. 2 Barnewall & Cresswell, 913. 7 Bingham, 692. Argument for the appellees. right to the use of the water of the stream had never been detached as property from the ownership of the adjacent soil, and that such use was claimed and held only as a riparica right. The act of Congress of July 26th, 1866, clearly recognizes a right to the use of water as independent of any right or title to land, and assures protection to this right whenever it has "vested" by "priority of possession," provided the "local customs, laws, and decisions of courts," recognize such a right and such a mode of acquiring it. Congress is here dealing with the public domain. The question then arises, is the case of the complainant within the provisions of the act of Congress of July 26th, 1866? Do the local customs, laws, and decisions of the courts of Montana recognize the acquisition of a right to the use of the water of a stream by appropriation, as separate and distinct from the ownership of laud adjacent to the stream, and is such right to be determined by the priority of possession among respective claimants? What is the fact as to the local customs, laws, and decisions of Montana, as they affect this question? [The counsel here cited and commented upon the laws of the Territory which are given in the statement of the case; and contended that they established that "rights to the use of water for agricultural purposes" may be acquired and become vested by priority of possession.] The "local customs and decisions of the courts" of the Territory also recognize and establish a similar rule of property. In Thorp v. Freed, Knowles, J., says: "Ever since the settlement of this Territory it has been the custom of those who 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. This right has been generally recognized by our people. It has been universally conceded that it was a necessity of agricultural pursuits. So universal has been this usage that I Opinion of the court. 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." Wade, C. J., in a separate opinion in the same case, denies that any custom exists recognizing the right to appropriate water for the purposes of agriculture and irrigation, whilst apparently admitting the existence of the custom as applied to mining and the mineral lands of the public do main. But if a usage exists recognizing the right to divert and appropriate water, the purpose for which the appropriation may be made is immaterial, provided it be useful or beneficial and not for speculation.* This right has been recognized, too, by the courts. The cases referred to show that it has been uniformly recognized and established in California and Nevada, and the courts of Montana have, on this subject, followed the decisions of the courts of those States.† Mr. Justice FIELD, after stating the facts of the case, delivered the opinion of the court, as follows: The record does not disclose what disposition was made of the demurrer to the complaint, but as an answer was subsequently filed upon which the parties proceeded to a hearing, the presumption is that it was abandoned. 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 lan * Ortman et al. v. Dixon, 13 California, 33; Davis v. Gale, 32 Id. 26; Woolman v. Garringer, 1 Montana, 535. + Caruthers v. Pemberton, 1 Montana, 111, 118; Thorp v. Woolman, Ib.. 171, 172; Woolman u. Garringer, Ib. 535, 543; Atchison v. Peterson, Ib. 564. Opinion of the court. guage" 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 |