The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1882-06-09

W1HhA h6k BffHg sIsi aIAtHS1 llns tflaI nc
had. nothing to bring suit for, but that il lie
removed the dam no would do 80 at his peril.
The employees swore to substantially the
same facts.
Only some nineteen of the persons arrested
We're identified, and tho number of armed
men dwinaled down to but few, some of
whom testified they had no weapon what
ever, while Morgan Evans cheerfally stated
he had gone there with gun, having carried
II to shoot crows, and hal shot them. The
prosecution also offered In evidence the no
tice Of waterright Nr. Mayberry had record.
ID in the County Recorders office. 1T may
be stated here that the prosecutions was q
complete break down, and the case might
have been dismissed, had the defense SO
moveAl
ALL or nearly ALL the defendants then testi-
fed. The substance of the testimony was
that Warm Spring Greek had been settled
uponfor 15or Is years;that settlers.are depend
ent upon its waters for the irrigation of their
lands and without which they could raise no
crops that there are practically "Ho banks"
on The upper creek, TINT cottonwood trees
grow in its channel, and tile stream &c high
water spreads ont over q vast extent Of low
meadow country, and nourishes and stimu-
Iates the grass l2nds from which they cut
their hay; that later in the season the irrlga-
ting bitches wou,d exhaust nil the water of
Warm Spring Creek, and that the floating of
ties and timber would seriously interfere
with their ditohes aud with the cultivation
of their farms, They also testified there was
vf,Ia. IT, III
yard had told some of his neighbors what
Mr., Mayherry intended to do. Instead of de-
signing u riot or gal~interference, they
had procured the presence at the scene Of
Mr.. VIM. Weir, n Justice of the Peace, and
Ir. Mckennon, constable, for the express
purpose OF making legal complaint against
Mr.. Mayberry and his force for tres pass or
such other otfense as he might commit and to
arrest him therefor. 1t was desirable to have
witnesses present and they came, beside
others Interested were attracted by the news
that the matter was TO come to issue at that
time and place. Mr.. O'Banuon testified that
the United States had conveyed patent to
lands on that creek disregarding its exist
enee as a Limitation line and selling the bed
Of the creek as n part of the land included in
the patent. 1t was further proven that the
time spent there was passed in general con-
yersation aud that before ho left Mr.. May
berry bargaincd with Frank Stephens for u
load of oats.
1t also developed that the Western Wood
and Flume Company hal no legal existence
in Montana, aud that all its acts and con.
tracts were void, it not having complied
with the laws of Montana relating TO such
corporations, and no legal etienSe could have
been committed against it,; also that there
was no evidence that che notice of appropri-
ton of water by II al recorded was posted ~
alleged, and even If it had been it was void,
the laws of Montana not recognizing rs an
appropriation Of water" the mere fact Of
posting q notice. 1t must be turned ont and
diverted. The question of navigabiltty Of
streams was also entered into TO some ex-
tent, but not decided and is really the ques-
ton Mr.. Mayberry should have tested by
civil action instead Of invoking the criminal
law to further his business purposes. 1t was
held by the defense, that while the. defend
ants had not done 50, Mr.. Vineyard wonid
have been entirely justiGable in resisting by
any force necessary the trespass Mr.. May
berry contemplated committing on his prem
ises in removing the dam he had erected to
carry water on his crops, and ahat although
the ground on which the dam was construct
Cd was not covered By patent, presumption or
homestead, 1t was enclosed and under cult
walton by Mr.. Vineyard and his possessory
title was good as against any but the United
States.