The Montana post. [volume] (Virginia City, Montana Territory [i.e. Mont.]) 1864-1869, 1866-02-10
THE LAW OF wATER-CoURsEs:
Decision of Judge G. p. Hall IN the
Case of Preston Scott ct al. VS.. Hugb
BrattOn et al. ,before the Deer Lodge
Probate Court.

|
Case OF Preston Scott et al. VS.. Hugh
Bratt0n ct al. before the Deer Lodge
Probate Court.
In this cause the plaintiffs claim that in December n
1863 gold had been discovered Pence District Opb
Gulch and that in February A. 1865 they preernpted
their ground in the said district for mining PURPOSES
together with all natural facilities thereuuto pertaining for
working the same; and that on or before the st dv Of
March, A d. 1868 they became in the right to the
use OF the water OF Ophr Guleh, for mining purposes by
appropriating the and using the purposes men
toned Plaintiffs also claim that on or about the 9Th day
of july A. D. 1865 the defendants in this cause did divert
the water Of Ophr Gulch from its in such
manner as to lead it beyond the of plaintiffs for their
use upon their claims in the said district and that they
were thereby damaged in the of two thousand and five
hundred dollars, and ask judgment for that amount The
defendants herein claim that in August A. d. 1864 they
discovered gold IN paying quantities in Tiger Guch, "a
tributary of Ophir Guch); and that about the same time
they surveyed and located ditch from point in Ophr
Guch to the bead of Tiger Gulch and claimed appro
prited e water Of Ophir for mining purposes The tes
tmony addueed in the trial of this cause has been yol-
nous and in the opinion of this Court fairly and truth
fully given and without conflict except upon unimporant
matters and not affecting materially the points in issue
The defendants have cUnclusvey proven to the satsfc
ton Of this Court that they the first appropriations of
the waters in dispute to be used for mining in Tiger
and, perhaps in French and Steamboat Clutches or for
any other useful purpose That parties have the right to
appropriate any all the water of any stream for anv
useful purpose provided that they the first appropri
tors thereof and previous appropriation of land has
been made upon which the waters passing over it were
intended to be used for beneficial purpose without any
particular formula in the act Of such appropriation being
made except such would inform persons wishing use
the same of the extent Of such appropriation no matter
OF question in the mind of this Court During the trial of
this cause the Court has allowed all the latitude to the
parties igant consistent with the rules evidence with
the view to ascertain all the facts pertaining issues
In this cause and the Jealous and able manner in which
the interests OF the parties presented by counsel
speaks loudly in honor ofhe attorneys employed for their
legal requirements and unwearyine faithfllpess The
defendants allowed prove their intentions in their
first appropriation by their individual testimony without
establishing by their own or other proof that they had
declared that they had taken the at any par
heuar point Defendants also proved that the 4h of
March last they formed their company and appropriated
the water in dispute for mining purposes without defining
he limits OF their ditch or fixing given point to which
they intended to carry the water and this is proven b
their hand and recorded in the books the county also
that the appropriation made about six months pre-
vlous which they substanated by oral proof was made
Dy stalking and surveying the ditch well by digging
IT to the head Of Tiger GulGh and part way to French
ulch Now which Of the characters of testimony is
me Court bound to consider viz the declaration made by
defendants and proven by testimony or their written
intentions made on the 4h day of March subsequent and
proven b the puohc records. Allowing the first named
to be conclusive did the defendants survey stake and
dig the ditch and appropriate the beyond point
where 1t would not flow back the plaintiffs claims for
their uses, in anywise bring the knowledge of the
plaintiffs their intentions do The Court is already
OF opinion that they did not Allowing record TO be
conclusive, had not the plaintiffs acquired right to the
use of the water previous TO the 4th of March by using it,
for mining purposes upon their claims On either hand
the law conempaes the necessity Of parties, appropria
tors making good their nenons by locating and proving
by their eXertions the full extent their appropriation in
such manner would least put prudent person upon
inquiry and the presumption of the law that their apnr
prIaton could not extend further than their declaration of
intention stated (or in other wOr) further than was sur
veyed staked and claimed up the time subsequent
appopHators came into the lawful possession and use of
said water. The right to water is AS right run
ming with the land mines cororeal privilege eptl-
ing the appropriation TO its and possession or actual
appropriation is the test all claims TO the use of water
whenever such claims dependent upon the right of
the soils through which it flows cannot be consc-
tive right The line where ditch is intended to be dug
dpfu
other parties may have reasonable notice of claim and
what Is reasonable notice must depend upon crcum-
stances OF the In this the Court is of the oDn
ion that defendants did sufficiently establish their claim
to the right to divert the in dispute beyond Steam
ooat and French cuicheS for no line Of ditch had been
surveyed staked had work been some two
months after the completion of the ditch named
guches and plaintiffs had undoubtedly been in the use
of the water quietly, about four months fiat and DURING
this ditch Carpenter and Prairie Clutches (of which plain
is complaint had proven that plaintiffs had
knowledge Of the defendants claim that they
structng at great expense it would materially change
the rights of the parties herein the plaintiffs cannot
oe required TO make extraordinary efforts ascertain the
extent OF defendants claim subsequent time they
came into the undsturbed possession an of water
The mere act of commencing ditch with intention of
approprang the of itself sufficient to give
party right the exclusive use of il but the notice
must be sufficient to inform all nquers of the full extent
OF such claim and the work of construction carried
on with reasonable diligence and force. Where parties
commence the construction of ditch who have not at the
time, the pecuBiary means to complete the same in rea
sonaDle me ana they project the work and claim the
water With knowledge OF their pecGary inability at the
time they cannot urge such of means as an excuse
Tor not prosecuting the work. The plaintiffs herein set ND
as their rights in this action their rights the use of the
waters of Ophr Guch for mining purposes as based up
the appropriation by them made and wherewith they had
used and enjoyed the from the s day of March last
TO the eth Of July subsequent and their claim in the opn
ION OF TINS Court, IS fully sustained by the testimony
ldduced As to the matter Of damages herein the Corr
feels delcaey in assessing them the reason that they
not already proven for any particular amount as based
upon any legal method known to this Court measuring
them. Witnesses testify that in their opinion plaintiffs
damaged by the wrongful Diversion OF the wafer in
ranging from $500 to 81 200 as based upon their
knowledge or what the witnesses believed plaintiffs could
have made II they had had sufficient to have worked
out their ground Now these more than they
would have realized above what they could subsequently,
n the spring, when water would be plentyf and if so
upon what grounds is this difference esimatedf The
amount OF proht arising from mining claim not fully
worked out il hard to estimate and Courts cannot consider
urther than has been actually demonstrated In this case
he Court of opinion that there methods of meas
lring the damages lst by comparing the value of the
claims at the time the damage commenced and time
hey could be worked 10 advantage; ID by computing
he value OF the use OF the profits arising from working
hem, If the claims had been worked out These are all
he grounds upon which, IN this case from the testimony
he Court can have cognZauce As the lst plaintiffs
lave failed to show any particular difference the value
,f their claims, at the times mentioned and therefore
ianages cannot be computed by that method and as
he second method the testimony conflicts greatly regard
lot only to the amount of damages sustained but also in
egard to the amount OF water continually running down
Tiger Gulch and which plaintiffs could all times
The Court OF opinion that at aes plaintiffs could not
work their ground with full force account of the wrong
ul diversion OF portion of the water by defendants 1t
therefore the opinion of the Court that the plaintiffs are
hereby deprived OF the of $3.50 the of one
and that the of damages thereon would be
It the rate OF ten per eentum that The Court
therefore, finds for plaintiffs their in this behalf
expended, and SIS damages.
G. p. HALL Probate Judge
I a