The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-01-19
DEER LODGE WATER RIGHT.
The Supreme Court Afirms . Judgmer
OF the Lower Court.

The Supreme Court Atirms q Judgment
OF tile Lower Court.
The only opinion handed down yesterday
by the supreme court was in the case of
John r. Quieley, plaintiff and respondent,
VS.. Charles G. Birdseye ct al, defendants
and appellants. Thu plaintiff brought his
action in Deer Lodge county for the taking
and diverging of water claimed by him.
He also asked that the defendants be en-
Joined from interfering with his water
right. The plaintiff admitted the right of
defendants to 200 inches OF the water of
Ophir creek, said right dating from an ap-
preparation in the year 1865. Subject to
such right the plaintiff claimed $50 inches
of said water. alleged to have been appro-
priated in the year 1866. The water OF the
creek during the portion of the year when
these parties required it for their uses WAS
heavily charged with tailings from mining
operations above both of the parties, and
independent of their rights. Defendants
took their water from the creek by the
Tiger ditch. Two hundred and seventy
feet below defendants plaintiff took his
water, and by the China ditch. The
fall from defendants head to plain
tif's was eights and one-half feet.
Each party had a dam. It seems that these
dams had a two-fold Office, one was to raise
LAC "aVo4 oAu ~ AAsS SAo SN\ vi
the bitches, the other was, in order to form
Il pool in which the t~ailings from above
might settle, so that they would not be car
ried into the bitches and fill them up.
When there was a considerable head of
water on, and the mining operations above
were extensive, the load of tailings was
very heavy, consisting not only Of line stuff,
but of rocks as large as a mans head.
Some of the witnesses call this matter slum,
and the dams slum DAMS. During active
operations above these parties, the dams
quickly filled with tailings. 1t then became
necessary to open the dams for 4 few min
utes, and let the water rush out, and carry
the tailings down the creek. This opera
tion was called Summing. 1t was claimed
that this slamming could be successful
only when the two dams were opened to-
gether, or that defendants dam GOULD be
also open, SO that the water and tailings
could sweep clean through; that if plain
tiff's dam was closed; when defendants
Summed, that the tailings would back up
against defendants dam and gate and i'm
pede their operations. 1t would seem that
if both parties Stunned at once there was
no trouble. 1t would seem further. that
there was a want of harmonious action be-
tween the parties i'll this matter. De-
fendants claimed that they could not use
their water right at all unless plaintiffs
dam were open SO that defendants could
ulSCnarRe Jnelr JallluPa. lue pldluUlH 3
complaint WAS that defendants opened his
gate. and kept it open, and finally tore it
out and threw it into the creek so that it
floated away; the result of which was that
the water did not go into plaintiffs ditch,
md 80 enterfered with plaintiff rs enjoyment
of his rights, and, that thereby, for SO veral
renBons, plaintiff got no water at all, Il
was greatly damaged. He asked Judgment
for 81, 900 damages, and also an injunction
to restrain defendants from interfering
with his water right. Plaintiff comedies to
defendants the prior right of 200 inches of
water, md claims for himself a subsequent
right of $50 inches. The jury found Il gem
eral verdict for S25 damages in favor of
plaintiff. The oouit made other special
findings. The defendants appeal from an
order denying II now trial and from the
Judgment. The Judgment ia ordered to be
modified so that it will ndjudge the defend
ants are entitled to the prior right to $50
inches of the waters of Ophir creek, in
stead OF 200. The district court is directed
to make that modification. and as so modi-
fed the Judgment is atti med, also the order
denying the motion for n new trial. This
Mt the costs of appellant. Opinion by De-
Witt, associate justice.
An appeal WAS filed in the case Of Peter
Schuttler and Chrisoph Hot2 appellants Vi.
j. Il. King from Lewis and Clarke county,
on a Judgment by default for $077.F on II
promissary note.