The Helena independent., 1894-11-20
The Boreman Water Company Must Lot
Others Have chaneo at tho Waters
Of Lyman Crock,
IMPORTANT SUPREME COURT RULING
The Great Falls School Bond Case, 0
Legacy That Was Void and a
Parental Contest.

II
and respondent Plaintiff sought to cu-
Join the company from diverting all
the waters OF Lyman creek into the
reservoir aud then to Bozemnn for the
use OF the people there. She claims
she ls deprived of the use OF 100 inches
OF the water OF the creek which she had
| appropriated In 1884 for irrigation and
| domestic purposes. Tho Bozeman
Water company claimed the exclusive
use OF the waters OF the creek ms sue.
cesaor 10 L. u. Lyman. who hppropri-
ated all the water In 1864 for his land;
that this land afterward became the
property Of the company and that all
the waters OF Lyman creek are needed
by the Bozeman Water company for
It's own uses and purposeH The trial
court found that the Bozemnn Water
company was the owner OF, and en-
ttled 70 the use Of all the waters OF
the creek above where the company's
ditch taps the creek. for the purpose
OF supplying the people of Bozeman
| with water. or for other useful or
beneficial purposes, and that Rachael
H. creek could appropriate only such
water as arose between the lower min
Ing ditch OF the company.
Justice Harwood wrote the opinion
OF the supreme court and the other
members concurred. The opinion says
that where several individuals, in sue
cession, have, pursuant 10 law, ap-
propriated and acquired right to use
the waters OF creek, for beneficial
purposes, such as the Irrigation of
their respective farms, the first ap-
proprietor, or his successor, after sub
sequent appropriations have been ac-
quired, can use the waters appropri-
ated by him for his individual uses.
but can not In addition. after his indi-
| vidual use has been suficed, convey
| the waters of the creek entirely away
from It's usual channel and sell the same
TO the inhabitants OF "A city for their
use, and thereby, without reeompense,
deprive the subsequent appropriations OF
| the use OF the waters of the creek.
THE right acquired by an appropria-
tor to the waters of natural stream"
says the court. "is not ownership OF
running volume of the dimensions
claimed, like the individual ownership
of chattel, so that IL may be trans
ferred corporally and carried away; but
the right acquired by the appropriation
Is the right to use a certain quantity
for necessary and beneficial purposes
such as supplying household needs. and
the carrying on of some useful industry;
and when such want is supplied, or the
use is subserved, all the rest OF the
creek, and all that returns thereto after
such use, is subject to appropriation n
and use by another for some beneficial
purpose. The same volume of water
may therefore, in its flow down the
creek, supply many persons, even
though the first appropriation claims the
whole volume, and can at times. or even
constantly, use the same for some in
dustrial purpose, because such use does
not usually swallow IL, but leaves II
available to others.
by such an appropriation the first
appropriation does not acquire a pre-
emption of the whole creek so that be.
or his successor may. after enjoying the
use OF II for some beneficial purpose.
convey the creek away and cut off sub
sequent appropriations. Therefore n
subsequent right TO use the same water,
or so much OF II as returns to the creek,
and 10 use the waters Of the creek when
the first Is not using the same, may be
acquired. II is well understood that a
creek In these mountainous regions,
flowing a volume Of $50 inches. would
suffice 10 irrigate more than one small
farm; not only so, that there are con-
siderable periods when farmer does
not irrigate his crops, while the water
in an adjacent stream, which he Is en-
titled to use, so far as his needs de-
mand. flows on forever, and Is subject
TO the use of others
"It has been held that an appropria.
tor OF water may change the use Of his
appropriation from one purpose To an
other. But it has never been held IN
this state (nor are we cited to like hold
ing elsewhere) that after an appropria'
tor has used the water sufficiently t.
answer the purpose OF his appropria
ton. he might take the waters Of the
stream remaining which he could not
use for the purpose OF his appropria
} ton, and sell Il TO other parties thereby
} depriving subsequent appropriations oi
} their right 10 use the same. That l,
} what defendant has accomplished II
} this case" The judgment of the lower
court liz reversed and the case remanded
, for new trial
, In the case of the state Of Montana
ex. rel. James T. Stanford vs. schoo
district No. /. OF Cascade county thf
supreme court reverses the judgment o
the lower court. Stanford sought e
restrain the Issue of $4,000 worth oi
school bonds. A demurrer 10 the com
plant was sustained In the Cascade
county court. The supreme court II
: an opinion by Justice Dewitt, the othel
members concurring, holds that th'
published notice OF the election for th'
bond issue submittd only two PROPOSE
tlons, the amount and purpose of the
bonds, and neglected to state the rat'
OF interest, the time payable and th'
, time redeemable. as required by law
The propositions omitted the cour
finds material and vital, and not slmpl!
needless foTmallties. These three impor
} tant matters the people never had |
chance to pass on. Hence the reverSh
OF the lower court.
Justice Dewitt also wrote the opin
ION I'm the matter Of the estate OF Char
! lotte Schmidt, II was an appeal o
the Home Mission Socletyof the German
) Lutheran church from the dlstric
court OF Lewis aud Clarke. Less thar
| thirty days before her death Mrs
Schmidt made a will, giving n few
, logacies, including $500 10 the Hom
: Mission society. the residue Of the cs
, tate going TO her son, Albert Bren
} singer Tho latter protested agains
paying the $780, as the law declare
lOgacies TO charitable or benevolent SO
cicties void II made within thirty day
) of death. The suprme court holds thn
this bequeat Was void under the law
and the money went TO the resldunr
lcgntoe. BTcnFiugcr. Hut because III
: will contained one void bcquest was no
: ground 10 attack the whole will. Tn
s Judgment Of the lower court Is affirmed
, Chief Justice Pemherton wrote III
opinion OF the court In the case of IN
D state of Montana cX. rel, Joseph j
+, Glroux VIZ. Rebocca Giroux on Jul
H. is03. Jnpeph l., Giroux and Rebccc
: Glroux were divorced I'm Arizona. TIL
I mother wns directed 10y the decree I
, give the infant child. George l.. GlrouN
( to the father, The child was az On
= time In Montana. Prior 10 the divorc
5 the couple had made written contrnc
nA to the distribution OF their prol
p erty and the custody of their chi
dren, BY this agreement the infau
George was given "a the father. TIL
;. latter gave the power or attorney to ON