The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1895-04-02
SUPREME coUtr DECISIONS
In GalIatin and Madison County District
Appeal Cases.


| Special Dispatch 10 the STANDARD.
HELENA, April Tho supreme court
handed down these decisions to-day: The
Middle Creek Ditch company VS.. John j.
Henry and 81 others. Appeal from Gal
latin county. Opinion of the court by JUS
tice Dewitt. The purpose OF this action
is TO settle the respective rights of all par
ties IN aud TO the use of the waters of
Middle creek in Gallatin county. Prior
to 1870 a number of farmers settled on the
lower portion of tho creek and made va
rious appropriations of the use of the
waters. About that year other farmers
settled on the upper portion of the creek.
A controversy arose as TO tho use of the
water, when tho upper appropriations
agreed to build large ditch and carry
the water of the West Gallatin river over
TO Middle creek and through the creek for
the use of the lower appropriators. In
consideration of this agreement tho lower
appropriations sold to the upper appropri-
ators tho use of the water which they then
owned. The agreement for this sale of
water was made in writing and
signed by the parties. IL was
not acknowledged or recorded. The
district court held that for this reason
deed of the use oil the water was void as
to the respondents, who were also nppro-
priators on the upper part of the creek.
The supreme court, IN reversing the de-
cisIon of the district court, holds that the
want of Acknowledgements does not render
the deed void. but that It was COOL be-
tween the parties. The supreme court
also holds that this deed was not void as
against tho respondents, who were sub
sequent approprIators. An unacknowl-
against subsequent purchasers in good
faith for a valuable con sideration of the
same property where the subsequent pur-
chaser's conveyance is recorded. The
supreme court holds that subsequent APP
perpetrators of water are not subsequent
purchasers in good faith of the same
property, and that they have no convey
ance which could be first recorded. The
district court held that the deed TO the up
per appropriators being void, operated as
an abandonment of the right to the use of
the water, but the supreme court holds
that the deed not being void there was no
abandonment.
The decision in this case modilcs what
seems to have been held in Barkley VS..
Tieleke, , Montana 50, where some deeds
for water rights were declared void ap-
parently because they were not acknowi-
edged and recorded.
State of Montana appellant vs.. William
Dakin. respondent, Dakiu was tried for
grand larceny IN the Madison county dis
trict court and acquitted. The county
attorney then filed another information
against DakIn, charging him with grand
larceny as baIlee for the ev Idcnce at the
first trial showed be was guilty OF that If
nythins at all Dakin put m a special
plea of former acquittat To which the
state demurrad, has overruled and Dakgu
discharged. When the case came up be-
fore the supreme court u was found that
no briefs had been fled by either appel
laut or rcsuo ndent. Under the circum-
stances" says the justice, makins the de-
cisiou, "we feel justified IN concluding
tuat the appellant. by failing 10 present
| and prosecute its appeal IN accordance
with the rules of practice of the court, in