The avant courier. (Bozeman, Mont.) 1871-1872, 1872-01-04
WATER RIGHTS DEFINED.
An Important Decision.

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| This was one of a series of actions brou OH
by the plaintiffs against the defendants
the parties being farmers in the Prickly Pea
Valley. The plaintiffs farms are scattered il
various parts Of the valley, and they claim al
the waters OF Prickly Pear creek Tor use 81
their farms for the purposes OF irrigation slnrt
Ing the cropping season, because OF an al
leged prior appropriation thereof; alleget ta,
use thereof by defendants. who are farmer
on the stream above. and they pray an in
Junction restraining defendants from sucl
diversions. n.5ass8 Q 4saT a.li ~
The nature of the case will further suffi
cienfly appear in the extract from the opin
ion given below by Chief Justice Wade: st'
y 4 80
The proof shows that a portion Of tht
waters of Prickly Pear stream were taken uI
and appropriated, prior to the appropriation
OF the plaintiffs or defendants, and that the
appropriations of the plaintiffs were all prior
to those Of the defehdants.sas is Fs
Thatthe appropriations of the plaintiff:
were several. and made for the purpose of ir-
rigating their several ranches. and that i por-
tionaof these ranches are situate on and con
tiguous to the stream. while Others are sew
eral miles therefrom. and water for the pur-
pose of irrigation is conducted to the several
ranches by means of bitches. as8H aa1
The proof further shows that the. ranches
OF defendants are contiguous to or on the
stream. and above the ranches Of plaintiffs.
and that water is taken therefrona for the pur-
pose of irrigation, and that such diversion
was subsequent to the approp priatlons OF
plaintiffs, and the defendants claim that their
Subsequent diversion and appropriation does
not injure or damage the rights Of the
plaintiffs, for neHreaspn that the. waters OF
thcistream are sufficient to supply the re
qulrefnents for irrigating purposes OF both
plaintiffs and defendants, and it is further in
proof that both plaintiffs and defendants are
the owners of their respective ranches, and
that the Governments has parted its
title, or that such steps have been taken to
bring about this result,
4 The importance OF the questions presented
BY this record cannot be oyer-cstimated. The
wide and extended valleys of our Territory.
rich in soik and capable Of producing ample
returns to the husbandman for his toll and
labor. are dry and arid, and the climate pro-
ducing no rains to moisten the ground. the
farmer is compelled to resort to irrigation to
produce and bring to perfection the products
of the earth. The streams that course
through our valleys are probably Insufficient
to afford water to irrigatc all tie lands that
might be successfully cultivated but for the
want of water. Aud this perplexing and
important question rs to how this insufficient
supply of water for the purpose of irrigaling
shall be distributed and divided among the
riparian proprietors and Others along any
given stream is presented for adjudication and
decision. r
We propose to consider the following
questions as applicable to the case:
1st. Have the plaintiffs such common
interest in the waters of the stream as to en-
title them to. join in bringing this action
I'd. Does the doctrine .sprior in time. prior
in right" as applied to the waters Of mineral
lands, upon the pubic domain, also apply to
the waters Of a stream in an agricultural Or
farming district. as to lands situate upon or
to such stream where the title to
such lands has passed from the Government
to the riparian proprietors along such
stream? 81. ss5l.. -. ...y
Sd. Was this case properly tried to the
court sitting as a. chancellor, Or should it
have bpen submitted to a jury a. ssassq bs#4a
1st. Our code provides that every action
shall be prosecuted in the name of the real
party in interest. If these plaintiffs are TO be
reated as riparian prepfietors, as at common
aw, and having all interest or property in
he water adjoining or running through their
arms. and such property therein as that an
injury to the stream would injure their prep
,rty, then they would have such 4 common
interest and property in the stream as would
entitle them, even at common law, to bring
his action. Ii the waters OF the sire tna are
Injured, polluteds or diverted above the farms
If the plaintiffs. the injury is common and
general to all the riparian proprietors below. !.
md for such an injury or diversion, all such
,roprietors below the point Of injury. and
laving a property ii the waters Of the stream
could well be joined in bringing an action for
he common Injury. s S5
There is another view in which the joinder
It these plaintiffs is sustained. This is suit
n equity, asking for equitable relief, and for
he purpose of preventing an innumerable
multiplicity Of suits; these plaintiffs having
common cause OF complaint. are properly
oined and in such case court of equity
yould order all parties having 4 commorin-.s
crest fiji the conffovsrsv and rights incSn1-
non to be adjusted. to be brought into COURT
ind if separate suits had been commenced
or a common purpose, that they be consoli-
lated. p
In this view Of the case. it would be proper
% join all the riparian proprietors having 4
common interest and property III the waters
IF stream from and below the point of in
ury to the mouth of the stream.
Again. III the plaintiffs are to be treated as
prior appropriations, and thereby entitled 10
he use of the waters of the stream, as against
he defendants. then it is true that they
Tuuld haye = common interest in the water,
while it il in the bed of the stream. and any
injury thereto, or thereof, Is common in
ury.
II the rightyto the waters Of the stream are
,wned by numerous different owners in dit |