Red Lodge picket. [volume] (Red Lodge, Mont.) 1889-1907, 1902-07-25

stream. Mr.. Wallace, however, contend
ed that no such right could pass from
the government to the settler and that il
it could the settler was not in position OF
title holder until such time as his title
was established at the land office and
that the user Of the waters Of a stream,
if he used them prior to the establish
ment Of such title, was in the position Of
a prior claimant. Mr.. Wallace also con
tended that the coal company, being
users of the stream at the time that the
ranchers took up their land, the latter
began the conducting Of their agricultu
raj and grazing pursuits with full knowl-
edge of the condition in which the water
Of the stream reached their lands at that
time and would be likely in future to
thus arrive upon them. 1t was also the
contention Of Mr.. Wallace that the de-
bris complained Of did not fill the chan
mel Of the stream nor force 1t to overflow
it's banks, that the refuse was Of such
character that it flowed with the stream.
The legislative enactment under which
Mr.. Wallace claimed the company is act
ling is designated as senate bill No. IS Of
the session laws OF 1901, and reads rs fol
lows:
All persons owning or having il opera
ton, and all persons who may hereafter
own or put in operation in the state of
Montana either in person or by agent,
any coal mine on any stream containing
fish or water which is used for domestic
purposes, or for irrigation, are hereby
prohibited from dumping, or causing TO
be dumped or deposited. any coal slack
or screenings emanating from such coal
mining operation into waters Of said
stream: provided, that this act shall not
} be construed to prohibit persons, com
panies Or corporations from dumping in
10 or returning to said stream the water
and refuse from coal washing or cleaning
machinery il plants that may, be situat-
ed on or contiguous to any such stream.
Mr.. Walsh very ably argued for the
ranchers all points brought il demurrer
r to bis pleadings holding that riparian
. rights did obtain III the state and that
Q they were established by federal decis-
t ions. and that the waters Of a stream
: passed in title from the government TO
Q the settler. AS to the title to lands be-
t ing established in the land office, he con-
8 tended that when settler took up land
he was considered to have rights to the
h land against invasion as much as ne did
d when his title to such land was estab-
d lished. He contended that there was no
II more right in the defendant company e
,r fill the stream with sediment which was
At deposited upon the lands Of the plaintifft
re than there would be for the dsfendan
ss company to haul such sediment on e
the lands with wagons or wheelbarrowa
IN He claimed that as matter OF TACT the
s' sediment, or debris, was not OF such
le character that it flowed with the stream
ir but that it was deposited all along tn
to course Of the stream to the detriment 9
he the lands Of the plaintiffs. Mr.. Walsl
i'll also made the point that the law unde
he which the defendant company claimed
be operating could not take away right
ty which we're vested before the law wen
r., into effect, and that while under it's prt
j. visions the defendant company might Ia
ed claim to the right to use the waters
or the stream for coal washing or cleaning
m the act did not give them right to r
lce turn to such stream anything more tina
to this water after it had been SO used.