No, 11973 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

WILLIAM McINTOSH, JR.. , HATTIE /" ~CINTOSH , 

SOREN N, BECK and DONALD P, MURRAY, 

Plaintiffs and Appellants, 

CLIFFORD GRAVELEY, 

Defendant and Respondent, 

Appeal from: District Court of the Third Judicial District, 

Honorable Nat Allen, Judge presiding, 

Counsel of Record: 

For Appellants : 

Small, Cumins & Hatch, Helena, Montana, 

Floyd 0, Small argued, Helena, Montana, 

For Respondent : 

Loble, Picotte and Lobl-e, Helena, Montana, 

Henry Loble and Peter Pauly argued, Helena, Montana, 

Submitted: February 18, 1972 

Decided : MAR Z 3 1972. 

Filed: MP,R 2 3 BT? 
Mr. Justice Frank I. Haswell delivered the Opinion of-the Court. 

This is a suit involving defendant's right to use certain 

waters of Spring Gulch, a tributary of Ophir Creek, in Powell 

County for irrigating a tract of land in an adjacent drainage 

and to change the point of diversion of such waters. The district 

court of Powell County, the Hon. Nat Allen, district judge presiding without a jury, entered a judgment of dismissal of plaintiffs1 claims. From this final judgment, plaintiffs appeal. 

The findings of fact of the district court in the instant 

case set forth the salient facts involved in this appeal. Ophir 

Creek is a stream rising in Powell County which flows in a 

southerly direction into the Little Blackfoot River near Avon, 

Montana. Spring Gulch is a tributary of Ophir Creek flowing into 

it from a northerly direction; it lies within the Ophir Creek 

drainage. Immediately west and adjacent to the Ophir Creek 

drainage lies the Three Mile Creek drainage. 

The waters of Ophir Creek and its tributaries, including 

the waters -of Spring Gulch, were adjudicated on March 28, 1928 

in Quigley et al. v. Victor Gold Mining Company, et al., Cause 

# 1185 in the district court of Powell County. 

Under that decree one James McGilvray was decreed the 

right to use 75 miner's inches of the waters of Spring Gulch with 

a priority as of March 31, 1911 "on the lands belonging to him 

as described in his pleadings * * * for domestic and other useful 

and beneficial purposes". The lands described in his pleadings 

included lands in the NE 1/4 NE 1/4 of Section 26, Township 11 

North, Range 8 West, in Powell County. The district court in the 
instant case found, in effect, that such lands were actually 

in the NE 1/4 SE 1/4 of said section, township and range. A 

portion of these lands and other lands of McGilvray for which 

the original appropriation was made, comprising in all not 

less than 54 acres, are located outside the Ophir Creek drainage and in the Three Mile Creek drainage. 

Plaintiffs in this case all claim to be successors in 

interest to various decreed holders of water rights in Ophir 

Creek and its tributaries in Quigley v. Victor Gold Mining Company, supra. The district court in the instant case, however, 

declined to so find as the proof thereof rested entirely upon 

the unsubstantiated oral testimony of two of the plaintiffs. 

Thus the nature, extent, and priority of plaintiffs' water 

rights in Ophir Creek and its tributaries remain unknown. 

Defendant, on the other hand, is the acknowledged successor in interest to the lands of McGilvray for which the latter 

was decreed the right to use 75 miner's inches of water of Spring 

Gulch with a priority as of March 31, 1911 in Quigley v. Victor 

Gold Mining Company, supra. 

The waters of Spring Gulch decreed to McGilvray, defendant's predecessor, were originally diverted from the west bank 

of Spring Gulch by means of "the old McGilvray ditch" in a 

westerly direction across the drainage divide from the Ophir 

Creek drainage to the adjacent Three Mile Creek drainage for use 

therein. Any further benefit of the diverted waters was lost 

to the water users in the Ophir Creek drainage because such 

waters could not return to the Ophir Creek drainage by percolation, 
seepage or otherwise. 

Additionally, the waters of Spring Gulch were diverted 

from the west bank of Spring Qllch by another ditch known as 

the "Faisview Mine Ditcht1 which was located downstream from 

"the old McGilvray ditch" between the latter and the confluence 

of Spring Gulch and Ophir Creek. These waters of Spring Gulch 

were conveyed in a westerly direction across a steep hillside 

to a point above the tailing dump for the Fairview Mine where 

the "Fairview Mine Ditch" abruptly terminated. These waters 

were used exclusively to operate a boiler at the Fairview Mine 

which is located in the Ophir Creek drainage. 

Since 1959 defendant has diverted the waters of Spring 

Gulch decreed to his predecessor McGilvray from a point of 

diversion on the west bank of Ophir Creek located approximately 

one-half mile downstream from the confluence of Spring Gulch 

and Ophir Creek for use on various different tracts of land 

under his control by means of different ditches and combinations 

of ditches. During the irrigation season of 1959 and 1960, defendant used a ditch known as the "Ophir-Quigley" or "Chinau 

ditch to convey such Spring Gulch waters to lands he owns in the 

Ophir Creek drainage located near Blackfoot City. In the fall 

of 1960 and the spring of 1961, defendant and plaintiffs McIntosh 

constructed the "McIntosh-Graveley" ditch, without protest or 

objection from the other plaintiffs, for the purpose of carrying 

the waters of Spring Gulch decreed to defendant's predecessor 

McGilvray out of the Ophir Creek drainage and into the Three 

Mile Creek drainage for use therein. 
At all times when water was available and needed during 

the irrigation seasons from 1961 through 1966 and for a portion 

of the irrigation season in 1967, defendant used an old ditch 

owned by plaintiffs McIntosh, known as the "McIntoshflditch in 

conjunction with the newly constructed "McIntosh-Grave1ey"ditch 

to convey the waters of Spring Gulch decreed to defendant's 

predecessor McGilvray out of the Ophir Creek drainage and into 

the Three Mile Creek drainage for defendant's use therein. 

In the spring of 1968, defendant constructed a ditch known 

as the "Graveley" ditch originating on the west bank of Ophir 

Creek just below the point of diversion of the "McIntosh" ditch. 

The "Graveley" ditch generally parallels the course of the 

"McIntosh" ditch for some distance, and at a point where the 

"McIntosh" ditch courses in a southerly direction defendant has 

placed a siphon under the "McIntosh" ditch which connects the 

"Graveley" ditch constructed in 1968 to the "McIntosh-Graveley" 

ditch constructed in 1960 and 1961. 

During the irrigation seasolsof 1969 and 1970, defendant 

has used this combination of ditches to convey the waters of 

Spring Gulch, decreed to his predecessor McGilvray, out of the 

Ophir Creek drainage and into the Three Mile Creek drainage for 

defendant's use therein. Defendant proposes to continue the 

use of these ditches for that purpose. 

At all times that defendant has conveyed the waters of 

Spring Gulch by means of the various diversion works located 

on the west bank of Ophir Creek downstream from the confluence 
of Spring Gulch and Ophir Creek, defendant has diverted and 

conveyed such waters out of the Ophir Creek drainage for use on 

lands he owns in the Three Mile Creek drainage. These lands 

of defendant in the Three Mile Creek drainage are lands other 

than those acquired from his predecessor McGilvray, for which 

the original appropriation was made. 

The district court also found that the burden of defendant's present use of the waters of Spring Gulch is no greater 

than the burden of the original use of such waters, and that the 

water users of Ophir Creek and its tributaries suffered no greater 

injury or detriment thereby. 

The only party to this action with weirs and measuring 

devices at his respective points of diversion is the defendant. 

Defendant has one weir and measuring device at the point where 

Spring Gulch flows into Ophir Creek, and another at his point 

of diversion on the west bank of Ophir Creek where the "Graveley" 

ditch is located. The district court found a failure of proof 

on the part of any of the plaintiffs that defendant is depriving 

them of any of the waters they claim under the decree in Quigley 

v. Victor Gold Mining Company, supra. 

However, the district found that there are accretions 

to the flow of Spring Gulch below the original point of diversion 

of the Spring Gulch waters decreed to defendant's predecessor 

McGilvray. The district court found that defendant was not 

entitled to these accretions. Accordingly, the district court 

ordered defendant to install a weir or measuring device at the 
original point of diversion. 

The district court also found that the plaintiffs did 

not object to defendant's use of the waters of Spring Gulch, 

heretofore described, until the filing of the instant suit on 

December 3, 1969. The district court found that this course of 

conduct on the part of plaintiffs induced defendant to expend 

substantial sums of money in improving his diversion works. 

From this the district court concluded that the principle of 

equitable estoppel barred assertion of any claims that plaintiffs 

might otherwise have in the instant suit. 

The instant suit was tried to the district court without 

a jury in July 1970. After plaintiffs rested, defendant moved 

for a judgment of dismissal with prejudice under Rule 41(b) of 

the Montana Rules of Civil Procedure, which the district court 

granted on the basis of its findings of fact and conclusions 

of law. The judgment was in favor of defendant denying all 

claims for relief of the plaintiffs, but required defendant to 

install a measuring device at the original point of diversion 

of the McGilvray appropriation so as not to benefit from downstream accretions in Spring Gulch to which defendant was not 

entitled. Plaintiffs now appeal from this judgment. 

The issues upon appeal can be summarized in this manner: 

(1) sufficiency of the evidence to support the findings of fact 

and judgment; (2) whether defendant had the right to divert the 

waters of Spring Gulch into the adjacent Three Mile Creek drainage for use therein; (3) whether defendant had the right to 
change the point of diversion of the Spring Gulch waters, In 

addition to these issues posed by plaintiffs, defendant raises 

the further issue as to whether estoppel and laches bar plaintiffs' claims in any event. 

Directing our attention to the first issue, we note 

extensive exceptions by the plaintiffs to the district court's 

findings of fact which are incapable of complete summarization. 

However, the gist of plaintiffs' principal contentions in this 

regard can be summarized in this manner: (1) the uncontradicted 

evidence shows that McGilvray, defendant's predecessor, never 

attempted to convey the waters of Spring Gulch into the Three 

Creek 

Mile/drainage for use on his lands there, nor was he ever decreed 

any right to do so under the decree in Quigley v. Victor Gold 

Mining Company, supra; (2) any diversion of the waters of Spring 

Gulch by defendant to the Three Mile Creek drainage for use on 

his lands there was permissive only during times when plaintiffs 

had no need or use for such waters; (3) defendant's change in 

the point of diversion saddled plaintiffs with an increased 

burden in exercising their water rights to their damage and 

detriment. 

At the outset we note that the decree in Quigley v. 

Gold 

Victor/Mining Company, supra, grants to defendant's predecessor 

McGilvray certain rights to the waters of Spring Gulch for use 

on certain described lands owned by him, some of which lie in 

the Ophir Creek drainage and some of which lie in the Three Mile 

Creek drainage. This decreed water right is based on an appropriation as of March 31, 1911. The appropriation and use of the 

waters of Spring Gulch under the decree is for irrigation of 

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the entire tract of land owned by McGilvray both in the Ophir 

Creek drainage and the Three Mile Creek drainage, and is not 

limited to any particular parcel of land owned by him, The 

conclusion is inescapable that the appropriation and decreed 

water right of McGilvray covered those described parcels of 

land owned by him in the Three Mile Creek drainage, as well as 

those located in the Ophir Creek drainage. 

Plaintiffs sought to overcome the foregoing by testimonial evidence tending to prove that McGilvray did not own any 

land in the Three Mile Creek drainage as of the date of the appropriation, and that he never attempted to divert or use Spring 

Gulch waters on any lands in the Three Mile Creek drainage. Such 

collateral attack and attempted relitigation of matters concluded 

in the decree in Quigley v. Victor Gold Mining Company, supra, 

is not permissible. That decree and the issues litigated and 

determined therein are res judicata and binding on the parties 

in the instant suit, all of whom claim their respective rights 

herein through predecessor parties in that earlier litigation. 

Brennan v. Jones, 101 Mont. 550, 55 P.2d 697; Missoula Light & 

Water Co. v. Hughes, 106 Mont. 355, 77 P.2d 1041. 

Plaintiffs cite three Montana cases for the proposition 

that where a decree does not specifically authorize an appropriation to remove water to an alien watershed permanently, the 

appropriator has no right to do so. Spokane Ranch & Water Co, 

v. Beatty, 37 Mont. 342, 96 P. 727; Galiger v. McNulty, 80 Mont. 

339, 260 P. 401; Quigley v. McIntosh, 110 Mont. 495, 103 P.2d 
Spokane Ranch & Water Co, contains this language, but 

suggests this proposition only in the context of the facts of 

that case, which are far different from the facts here, There, 

the court held that the district judge did not intend to grant 

the right to release the water permanently to an alien watershed with regard to agricultural water rights or the same language would have been used there as in the case of a placer mining 

water right where such right was granted. In the instant case 

the contrary intention appearq as the right to use the water on 

land in the foreign drainage is spelled out in the decree. 

Galiger simply stands for the proposition that waters 

primarily belong in the watershed of their origin, if there is 

land therein which requires irrigation. 

Quigley stands for the proposition that a water user 

who has been decreed the right to use a specifis.amount of water 

on given lands cannot subsequently extend the use of that water 

to additional lands not under actual or contemplated irrigation 

at the time the right was decreed, to the injury of subsequent 

appropriators. However, this principle is not germane to the 

instant case, as no injury to subsequent appropriators in the 

drainage of origin is possible where permanent diversion of the 

waters into another watershed was decreed in the original appropriation. 

On a number of occasions this Court has recognized that 

the waters of a stream located in one drainage can be appropriated for irrigation purposes or other beneficial uses in 

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another drainage. Spokane Ranch & Water Co, v. Beatty, supra; 

Carlson v. City of Helena, 43 Mont. 1, 114 P. 110; Lokowich v. 

City of Helena, 46 Mont. 575, 129 P. 1063; Galiger v. McNulty, 

supra; Thrasher v. Mannix & Wilson, 95 Mont. 273, 26 P.2d 370; 

State ex rel. Mungas v. Dist. Ct., 102 Mont. 533, 59 P.2d 71. 

Where, as here, the water user in the drainage of origin is not 

injured, he has no cause to complain if the water is devoted to 

beneficial use in a foreign drainage. 

Plaintiffs' contention that the evidence shows that any 

diversion of the waters of Spring Gulch by defendant into the 

Three Mile Creek drainage for use on his lands there was with 

the permission of plaintiffs during times when plaintiffs had 

no need or use for the waters is without merit. The evidence 

simply does not substantiate this contention. The most it shows 

is a permissive user of a ditch for a period of time to carry 

his water. Ditch rights and water rights are two separate rights 

and in no sense synonymous. 

Plaintiffs finally contend that the change in the point 

of diversion of the waters from the west bank of Spring Gulch 

where the original appropriation was made to the west bank of 

Ophir Creek constituted an increased burden on them as water 

users in Ophir Creek. The only testimony in the record supporting this is their testimony that they would be saddled with their 

proportionate share of the expense of a water commissioner to 

distribute the waters in accordance with their respective rights, 

If a weir and measuring device is installed at the original point 

of diversion to measure the water to which defendant is entitled, 
as well as continuing the existing measuring device at defendant's present point of diversion as required by the district 

court, it is difficult to see why a water commissioner is any 

more necessary than if the water were taken from the original 

point of diversion. Aside from this, the expense of employing 

a water commissioner does not constitute the burden or detriment required to be proven by plaintiffs in order to prevail. 

other 

We have examined the/zontentions of plaintiffs concerning sufficiency of the evidence and find the facts either supported by the evidence or immaterial to determination of this 

appeal. 

The second issue raised by plaintiffs upon appeal is 

whether defendant had the right to divert the waters of Spring 

Gulch into the adjacent drainage for use on his lands there. 

It is important to note that defendant is using the water for 

irrigation of lands in the Three Mile Creek drainage which he 

subsequently acquired from persons other than the original appropriators and which in no sense were the lands for which the 

original appropriation was made. It should also be noted that 

there is no claim of abandonment of the original appropriation 

in the instant case. 

Having heretofore found that defendant's predecessor was 

granted the right to convey the waters of Spring Gulch across 

the drainage divide for use on his lands located there and described in his pleadings under the decree in Quigley v. Victor 

Gold Mining Company, supra, and it being admitted that defendant 
here succeeded to those rights, the only remaining question is 

whether defendant can use these waters on his other and different lands located in the Three Mile Creek drainage. 

This question has heretofore been answered affirmatively 

in a similar Montana case, Thrasher v. Mannix & Wilson, 95 Mont. 

273, 277, 26 P.2d 370. There, the argument was made that the 

holder of a water right entitling him to the use of such waters 

on his lands in an alien watershed, could not bring additional 

lands in the alien watershed under irrigation with the waters 

diverted from the watershed of their origin. This Court dismissed 

that contention in these words: 

" * * * It appears from the record that these 

new lands are outside the watershed of Gold 

Creek. From the testimony it appears that the 

waters diverted under this particular right were, 

and the court found and so adjudged in the former 

decree, the waters thereby appropriated, and 

had been and could continue to be, used without 

the watershed of Gold Creek. In view of these 

facts no injury could result to these plaintiffs 

from this change of use, for the use both before 

and after was for the same purpose; there being 

no opportunity for any of the plaintiffs to 

enjoy any benefits from percolating waters 

resulting from irrigation under this right 

inuring to them, as their lands are either all 

within the watershed of Gold Creek, or, if without, at a higher level than the lands of the 

defendant. " (Emphasis supplied. ) 

Such is the situation here. Plaintiffs could not further 

benefit from the waters diverted to the Three Mile Creek drainage under the original appropriation, so they are not burdened 

or damaged in any way from irrigation of other lands in that 

drainage. 

The next issue is whether defendant had the right to 
change the point of diversion of the Spring Gulch waters. 

The controlling statute is section 89-803, R.C.M. 

1947, which provides: 

"The person entitled to the use of water may 

change the place of diversion, if others are 

not thereby injured, and may extend the ditch, 

flume, pipe, or aqueduct, by which the diversion is made, to any place other than where 

the first use was made, and may use the water 

for other purposes than that for which it was 

originally appropriated." 

The burden of proof of injury as the result of a change 

in the point of diversion is upon those who allege injury, here 

the plaintiffs. Forrester v. Rock Island Oil & Refining Co., 

Inc., 133 Mont, 333, 323 P.2d 597, and cases therein cited. Here, 

plaintiffs have no adequate measuring devices to determine with 

any degree of accuracy the amount of water they are receiving 

under their respective rights. It is necessary for them to 

prove that they are being deprived of waters to which they are 

lawfully entitled. The only proof of this was in regard to the 

accretions to the Spring Gulch waters below the point of original diversion. The district court remedied this by attaching 

a condition to its decree requiring defendant to install a measuring device at the original point of diversion and divert no 

greater amount of water at the changed diversion point on the 

west bank of Ophir Creek. There is a complete failure of proof 

on the part of plaintiffs of any other damage. 

Finallycas to the issues of laches and estoppel, we 

deem it unnecessary to discuss these issues in this opinion; 

neither has been raised as an issue upon appeal by plaintiffs, 

appellants here. In view of our holdings herein defendant is 
entitled to prevail irrespective of determination of these 

issues. 

The judgment of the district court is affirmed. 

Associate Justice 

Hsn . Jack Shanstrom, District 

Judge, sitting in place of Mr. 

Justice Wesley Castles.