No, 11973 INTHE 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:

## MARZ

## 3

## 1972. Filed:

### MP,R

## 23

# BT?Mr. Justice Frank I. Haswell delivered the Opinion of-theCourt. This is a suitinvolving defendant's right touse certain waters of Spring Gulch, a tributaryof Ophir Creek, inPowell County for irrigating a tract of land inan adjacent drainage and tochange the point of diversion of such waters. The district court of Powell County, the Hon. NatAllen, districtjudge presidingwithout a jury, entered a judgment of dismissal of plaintiffs1claims. From this finaljudgment, plaintiffs appeal. The findings of factof the district court inthe instant

case set forth the salient facts involved inthis appeal. Ophir Creek is a stream rising inPowell County which flows in a southerly direction intothe 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 MileCreek drainage. The waters of Ophir Creek and its tributaries, including the waters-of SpringGulch, were adjudicated on March 28, 1928 inQuigleyetal. v. Victor Gold Mining Company, et al., Cause # 1185 inthe district court of Powell County. Under that decree one James McGilvray was decreed the right touse 75 miner's inches of the waters of Spring Gulch with

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

as described inhis pleadings 

## * * * fordomestic and other useful and beneficial purposes". The lands described inhispleadings included lands inthe NE 1/4 NE 1/4 of Section 26, Township 11 North, Range 8 West, inPowell County. The district court intheinstant case found, in effect, that such lands were actually inthe NE 1/4 SE 1/4 of said section, township and range. A portion of these lands and other lands of McGilvray forwhich the original appropriation wasmade, comprising 

### in allnot less than 54 acres, are located outside the Ophir Creek drainage and inthe Three MileCreek drainage. Plaintiffs inthis case all claim to be successors in interest tovarious decreed holders of water rights inOphir Creek and its tributaries inQuigleyv. Victor Gold Mining Company, supra. The district court inthe instant case, however, declined toso find as the proof thereof rested entirely upon the unsubstantiated oraltestimony of two of theplaintiffs. Thus the nature, extent, and priority of plaintiffs' 

### water rights inOphir Creek and its tributaries remain unknown. Defendant, on the other hand, is the acknowledged succes

### sor ininterest to the lands of McGilvray forwhich the latter

was decreed the right touse 75 miner's inches of 

### water of Spring Gulch with a priority as of March 31, 1911inQuigleyv. Victor Gold Mining Company, supra. The waters of Spring Gulch decreed toMcGilvray, defendant's predecessor, were originally diverted from the

### westbank of SpringGulch by means of "the oldMcGilvray ditch" ina westerly direction across the drainage divide from the Ophir Creek drainage tothe adjacent Three MileCreek drainage for use therein. Any furtherbenefit of the diverted waters was lost tothe water users inthe Ophir Creek drainage because such waters could not return tothe Ophir Creek drainage by percolation,seepage or otherwise. Additionally, the waters of Spring Gulch were diverted from the westbank of SpringQllch by another ditch known as the "FaisviewMine Ditcht1which was located downstream from "the oldMcGilvray ditch" between the latter and the confluence of Spring Gulch and Ophir Creek. These waters of Spring Gulch



### were conveyed ina westerly direction across a steephillside toa point above the tailingdump for the Fairview Mine where the "Fairview Mine Ditch" abruptly terminated. These waters

were used exclusively tooperate a boiler atthe Fairview Mine which is located inthe Ophir Creek drainage. Since 1959 defendant has diverted the waters of Spring Gulch decreed tohis predecessor McGilvray from a point of diversion on the 

### westbank of Ophir Creek located approximately one-half miledownstream from the confluence of Spring Gulch and Ophir Creek foruse on various different tracts of land under his control by means of differentditches and combinations of ditches. During the irrigation season of 1959 and 1960, defendant used a ditch known as the "Ophir-Quigley" or "Chinau ditch toconvey such Spring Gulch waters tolands he owns inthe 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 todefendant's predecessor McGilvray out of the Ophir Creek drainage and intothe Three MileCreek drainage foruse therein.Atalltimeswhen water was available and needed during the irrigation seasons from 1961through 1966 and for a portion of the irrigation season in 1967, defendant used an old ditch owned by plaintiffs McIntosh, known as the "McIntoshflditchin conjunction with the newly constructed "McIntosh-Grave1ey"ditch toconvey the waters of Spring Gulch decreed todefendant's predecessor McGilvray out of the Ophir Creek drainage and into the Three MileCreek drainage fordefendant's use therein. In the spring of 1968, defendant constructed a ditch known

as the "Graveley" ditch originating on thewestbank of Ophir Creek just below the point of diversion of the "McIntosh" ditch. The "Graveley" ditch generallyparallels 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" ditchwhich connects the "Graveley" ditch constructed in 1968 tothe "McIntosh-Graveley" ditch constructed in 1960 and 1961. During the irrigation seasolsof 1969 and 1970, defendant has used this combination of ditches toconvey the waters of Spring Gulch, decreed tohis predecessor McGilvray, out of the Ophir Creek drainage and into the Three MileCreek drainage for defendant's use therein. Defendant proposes tocontinue the

use of these ditches for that purpose. Atalltimes that defendant has conveyed the waters of Spring Gulch by means of the various diversion works located

on thewestbank of Ophir Creek downstream from the confluenceof Spring Gulch and Ophir Creek, defendant has diverted and conveyed such waters out of the Ophir Creek drainage for use on lands he owns inthe Three MileCreek drainage. These lands of defendant inthe Three MileCreek drainage are lands other than those acquired from his predecessor McGilvray, forwhich 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 originaluse of such waters, and that the water users of Ophir Creek and its tributaries suffered no greater injury ordetriment thereby. The only party to this actionwith weirs and measuring devices athis respective points of diversion is the defendant. Defendant has one weir and measuring device atthe point where Spring Gulch flows intoOphir Creek, and another athis point of diversion 

### on the west bank of Ophir Creek where the "Graveley" ditch is located. The district court found a failureof proof

on the part of any of the plaintiffs that defendant is depriving them of any of the waters they claim under the decree inQuigley

v. Victor Gold Mining Company, supra. However, the district found that there are accretions tothe flow of Spring Gulch below the original point of diversion of the Spring Gulch waters decreed todefendant's predecessor McGilvray. The district court found that defendant was not entitled tothese accretions. Accordingly, the district court ordered defendant toinstalla weir ormeasuring device attheoriginalpoint of diversion. The district court also found that the plaintiffs did not object todefendant's use of the waters of Spring Gulch, heretofore described, until the filingof the instant suiton December 3, 1969. The districtcourt found that this course of conduct on the part of plaintiffs induced defendant toexpend substantial sums of money inimproving his diversion works. From this the district court concluded that the principle of equitable estoppelbarred assertion of any claims that plaintiffs might otherwise have inthe instant suit. The instant suitwas tried tothe district court without

a jury inJuly 1970. After plaintiffs rested, defendant moved for a judgment of dismissalwith prejudice under Rule 41(b) of theMontana Rules of CivilProcedure, which the district court granted on the basis of its findings of fact and conclusions of law. The judgment was infavor of defendant denying all claims for relief of the plaintiffs, but required defendant to install a measuring device atthe original point of diversion of theMcGilvray appropriation so as not tobenefit from downstream accretions inSpring Gulch towhich defendant 

### was not entitled. Plaintiffs now appeal from thisjudgment. The issues upon appeal can be summarized inthismanner: (1)sufficiency of the evidence to support the findings of fact and judgment; (2) whether defendant had the right todivert the waters of Spring Gulch into the adjacentThree MileCreek 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 factwhich 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 -8-

### 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, 101Mont. 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, 80Mont. 339, 260 P. 401; Quigley v. McIntosh, 110 Mont. 495, 103 P.2dSpokane Ranch & Water Co, contains this language, but suggests thisproposition only inthe context of the facts of that case, which are fardifferent from the factshere, There, the court held that the districtjudge did not intend to grant the right torelease thewater permanently to an alienwatershed with regard toagriculturalwater rights or the same language would have been used there as inthe case of a placermining water rightwhere such rightwas granted. In the instant case the contrary intention appearqas the right touse the water on land inthe foreign drainage is spelled out in the decree. Galiger simply stands for the proposition thatwaters primarily belong inthe watershed of theirorigin, if there is land therein which requires irrigation. Quigley stands forthe proposition that a water user who has been decreed the right touse a specifis.amountof water

on given lands cannot subsequently extend the use of thatwater toadditional lands not under actual or contemplated irrigation atthe time the right

### was decreed, tothe injury of subsequent appropriators. However, thisprinciple is not germane 

### to the instant case, asno 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 thisCourt has recognized that the 

### waters of a stream located inone drainage can be appropriated for irrigationpurposes orother beneficial uses in 

# - 10

# -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; Stateex 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 tocomplain 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 MileCreek drainage foruse on his lands there was with the permission of plaintiffs during timeswhen plaintiffs had

no need oruse 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 tocarry his water. Ditch rights and water rights are two separate rights and inno sense synonymous. Plaintiffs finally contend that the change inthe point of diversion of the waters from the westbank of Spring Gulch where the original appropriation was made tothe west bank of Ophir Creek constituted an increased burden on them as water

users inOphir 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 atthe original point of diversion tomeasure the water towhich defendant is entitled,aswell as continuing the existingmeasuring device atdefendant'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 ordetriment required to be proven by plaintiffs inorder toprevail. other Wehave examined the/zontentions of plaintiffs concerning sufficiency of the evidence and find the facts either supported by the evidence orimmaterial todetermination of this appeal. The second issue raised by plaintiffs upon appeal is whether defendant had the right todivert the waters of Spring Gulch intothe adjacent drainage foruse on his lands there. It is important tonote thatdefendant is using the water for irrigation of lands inthe Three MileCreek drainage which he subsequently acquired from persons other than the original appropriators and which inno sensewere the lands forwhich the original appropriationwas made. It should alsobe noted that there is no claim of abandonment of the original appropriation inthe 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 inhis pleadings under the decree inQuigleyv. Victor Gold Mining Company, supra, and it being admitted thatdefendanthere 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 MileCreek drainage. This question has heretofore been answered affirmatively ina similar Montana case, Thrasher v. Mannix & Wilson, 95Mont. 273, 277, 26 P.2d 370. There, the argument wasmade that the holder of a water right entitlinghim tothe use of such 

### waters

on his lands in an alienwatershed, could not bring additional lands in the alienwatershed under irrigationwith the waters diverted from the watershed of their origin. This Court dismissed that contention inthese words: 

### " 

## * * * It appears from the record thatthese new lands are outside the watershed of Gold Creek. From the testimony it appears that the waters diverted under thisparticular right were, and the court found and so adjudged inthe former decree, the waters thereby appropriated, and had been and could continue tobe, used without thewatershed of Gold Creek. Inview of these facts no injury could result to these plaintiffs from this change of use, for the use both before and afterwas for the same purpose; there being no opportunity for any of the plaintiffs to enjoy any benefits from percolating waters resulting from irrigationunder this right inuring tothem, astheir lands are either all within the watershed of Gold Creek, 

### or, if without, ata higher level than the lands of the defendant.

### " (Emphasis supplied.) Such is the situationhere. Plaintiffs could not further benefit from the waters diverted tothe Three MileCreek drainage under the original appropriation, sothey arenot burdened

ordamaged inany way from irrigation of other lands inthat drainage. The next issue is whether defendant had the right tochange 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 theplace of diversion, if others are not thereby injured, and may extend the ditch, flume, pipe, or aqueduct, by which the diversion ismade, toany place other than where the firstuse was made, and may use thewater for other purposes than that forwhich it was originally appropriated." The burden of proof of injury as the result of a change inthe point of diversion is upon those who allege injury, here the plaintiffs. Forrester v. Rock Island Oil & Refining Co., Inc., 133Mont, 333, 323 P.2d 597, and cases therein cited. Here, plaintiffs have no adequate measuring devices todetermine 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 towhich they are lawfully entitled. The only proof of thiswas in regard tothe accretions tothe Spring Gulch waters below thepoint of originaldiversion. The district court remedied thisby attaching

a condition toits decree requiring defendant toinstall a measuring device atthe original point of diversion and divert no greater amount of water at the changed diversion point on the westbank of Ophir Creek. There is a complete failureof proof

on the part of plaintiffs of any other damage. Finallycasto the issues of laches and estoppel, we deem it unnecessary todiscuss 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 isentitled 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.