The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-12-03
EVANS GETS HIS WATER
A Decision in the Water Right
Controversy.
FINDINGS OF THE COURT
Evans Must Maintain the Ditch at His
Own Expense When Not in Use
by the Defendant-Entitled
to Ninety Inches.

Judge Brantly yesterday rendered his
findings in the case of David Evans
against the Anaconda Copper Mining
company. The findings Of the court are
in some respects different from the ver-
dict rendered by the jury.
The findings of the court, 10Th of fact
and law, are as follows
This cause was submitted to the
jury on November the 30th, 1898, for
special findings upon the facts. The
queries submitted to the Jury are num-
bered c~onsecutively from one to IL, in
elusive. After they were returned in
to court by the jury with their answer
thereto, counsel for the plaintiff NOV
ed the cour to reject findings No. 1,
No. 4. No. 6. Nos. 8. 10 and IL, to adopt
the rest of h findings of the jury and
also to make additional findings such
as to support a judgment in favor of
the plaintiff on all the issues involved
herein. The defendant also at the same
lime moved the court to adopt all the
findings made by the jury and enter
judgment thereon for the defendant
for its cost. The action Of the court
upon these motions will be apparent
from comparison of the findings made
by the jury with those here made as
~ hiuihSo w lut touIt.
The court finds the facts to be as
follows:
In the year 1869. the predecessors
OF the defendant constructed a ditch di-
verting waters from Warm Springs
creek for the purpose of irrigating lands
situated in sections 4 and 5, in township
4, north of range 10 west. of the Mon
tana Meridian. consisting of several
hundred acres.
I'm the spring OF the year 1889. the
plaintiffs predecessors settled upon the
south half of the southeast quarter of
section 5. in township 4, north of range
10 west. and subsequently the plain
tin herein became vested with the title
to the same by patent from the United
States. The lands of the plaintiff here
described are agricultural i'm character
and require water brought upon it by
artificial means for the purpose of ir-
rigation- The largest o of land
ever cultivated by the plaintiff or any
of his predecessors in interest was about
30 acres. The predecessors of the plain
tiff at the time of their first settlement
on said land. began to use water for
~irrigating through the said
ditch dug in 1869. by the predecessors
of the defendant. and they and the
plaintiff hav continued to use water
through the said ditch and branch ditch
es therefrom constructed by themselves
until the year 1896. The right of the
plaintiff aud his predecessors to so use
the waters of Warm Springs creek
through the said ditch has been recog-
nfzed by the defendant and its agents
from the time of the settlement of the
s~plaintiff's predecessors aforesaid until
the year 1896. In the year 1896. the
defendants removed a fiume, forming a
part of said ditch at its intersection
with a slum ditch of the defendant. by
means OF which the water diverted
from Warm Springs creek for irrigat-
ing as aforesaid are conveyed
over and across the said slum ditch. The
removal by the defendant OF the said
Hume was for the purpose of prevent
ing an ice gorge IN the said slum ditch
during the winter season of 1896. In
the spring of 1896. at the beginning of
the irrigation season. the plaintiff APP
piled to the defendant and requested
IL to restore the said iume to its proper
place. This the defendant refused to
do n denied the plaintiffs right of
title therein or to any part of the wat
ers flowing therein, but did not prohib-
II or prevent the plaintiff from restor-
ing the same at his own expense n
using the water for irrigating purpos-
es during the years 1896. 1897 n 1898.
The land of the plaintiff is arid n
requires o two and one-half inches
to the acre.. IL properly irrigated.
THE plaintiff suffered no damages
at the hands of the defendant during
the years 1896. 1897 and 1898, except such
as he himself might have prevented
by the restoration of the ditch and
fume to its usual condition, the defend
ant having the right to remove the
fiume at any time except during the ir-
rigation season for the proper use of
its slum ditch.
I'm flowing from the point OF d.
version through said ditch to the land
cultivated by the plaintiff. about Is per
cent. of the water evaporates and is
lost.
From the foregoing facts the court
finds as conclusions of law:
"First-That the plaintiff and defend
ant are tenants in common in the said
ditch. the plaintiffs interest being
about 30 inches of the capacity thereof.
and the defendants interest being the
remainder.
"Second-That the plaintiff is entitled
to the use of 30 inches of the water Of
Warm Springs creek through the aid
ditch. as of the date of the spring Of
1888.
"Third-That il is the plaintiffs duty
when the said ditch and fiume are not
in use by the defendant TO maintain at
his own expense.
"Fourth-The plaintiff is entitled to
a decree establishing his right accord
ingly.
1T is further ordered hat the mo-
tions made by the parties touching the
findings of the jury. except In so far