The Yellowstone journal. [volume] (Miles City, Mont.) 1893-1901, 1893-03-07


t'se sch Ha,er Wh"n the p.iot apn o
pria.1 eahnot, = u! have ihc figi.l t.
: the ,euadcial ple pf srel, s'ream.
Ninth IN this case Tie ivty is h.
8, stgHc,ea that rnless sou lind from tEc
. evidence tha, the defendant has vIolatcd
some tight of the plaiatitf in the ma ter
oi watc, right fhea your verdict should
be generally for The deie1tant.
distinctions 10 and II ,efer 10 the pre-
ron,ie.ance of evidence and the credi-
billy Of witnessess, and are general in
al trials.
Twelfth The court iRstructs you that
IN this case. If you find that the plaintiff
fas a prior right TO the waters of Reser
vaion creek as alleged in any number
of inches. then you will find that he is
entitled to the free and uninterrupted
flow Of the waters of said creek 10 the
extent of such amount as you may find
him entitled 10. at all times when any
r'appreciabie quantity of water. flowing
IN the ordinary bed Of the creek will
reach his dam and bitches. whenever he
required the same for irrigation purposes.
Thirteenth The jury are instructed
that it is not sufficient for a party in "A
civil action to allege a damage in either
a complaint or an answer. but the fact
| OF such damage. when denied. if any
exist musi be proven to the jury by a
| r.rponaerance Of evidence, establishing
such damage: and in offering proof rt-
/ der an allegation of damage in com
plant. it is incumbent upon the person
alleging such damage to give such con
vncing proof thereof as that the jury
can determine from the evidence what
the damage. if any. really and actually is
and III this ease If the plaintiff has not
offered proof in support of lis allegation
of damage in his complaint in such form
rs tiiat the jury can intelligently deter |
mine what such damage. If any. really is /
then the jury could not find damages for
the plaintitf under the allegation Of this
complaint. and on the point of damage
the plaintiff would not he entitled to
recover.
Fourteenth The court instructs the
jury thai before the plaintiff can recover
from the defendant any damages for the
diminished amount of crop in the year
1872. of whichhe complaints. he must
show il in the evidence that such dam
age was caused by the defendant keep
ing water from the plaintiffs land which
he otherwise would have had for the
purpose Of irrigation. and unless such
fact of damage had been proven To the
satisfaction Of the jury by prope.,der
ance of evidence. then the jury cannot
tin,; damages against the defendant and
in favor of the plaintiff in this action.
Fifteenth The jury are instructed
that if you believe from the evidence
that there is water flowing i'll Reserya
tion creek at the dam and ditch of de-
fendant Lewis during the irrigation sea
son. which il permitted To run in the
bed of said stream would not reach the
headgate Of the plaintiff. Mace. then the
defendant is entitled to the use of such
water To the greatest amount which the
jury may believe from the evidence
would run at the dam and ditch Of the
defendant. and would not reach the
headgate Of the plaintiff. and even
though the jury may find from the evi
dence that the plaintiff. Mace. is entitled
to priority Of water right over the de-
fen.lant Lewis. yet il there is water in
said creek which would be available to
the defendant for the purposes Of irri-
CATION. and would not be available to the
plaintiff, then the defendant would be
entitled to such Of the water from said
creek as would not be Of beneficial use
to the plaintiff.
Sixteenth-The jury are instructed
that although you may believe from the
evidence that the plaintiff filed water
right in the Office Of the county clerk Of
Custer county in 1884. claiming the right
to divert 1000 inches Of water from Res
eryation creek, yet all that the plaintiff
is entitled to under such claim Of right
is the amount Of water which he had
actually appropriated and was using or
needing and prepared to use, at the time
the defendant filed his water right. and
was ready by means Of ditch and dam to
use water from said creek to which the
said plaintiff was not entitled; and in de-
termining the plaintiffs right in such
filing, he could not go beyond the
amount which he was prepared by his
dam and headgate and ditch to carry
from said creek and il at the time the
defendant was prepared under the law,
to use water from such ditch. the plain
tiff had dam and headgate and ditch
sufficient to carry only AGA inches Of
water. then the plaintiff could not claim.