Red Lodge picket. [volume] (Red Lodge, Mont.) 1889-1907, 1902-07-25
THEY HAVEHAD ENOUGH.
Rock Greek Ranchers Declare They Won't
Take Any More Slack From Rocky
Fork Goal Company.
TEMPORARY INJUNCTION
Judge Henry Issues Order Directing That
Nothing But Washer Water Be
Run Into Greek.

Run Into Greek. t
Judge Henry on Wednesday granted a
temporary injunction restraining the !.
Rocky Fork Coal company from dump
ing into the waters of Rock creek any
thing other than the waters that come
from the washer recently installed at the !.
mine. The injunction was issued upon
application ot the plaintiffs in the action
recently begun by the ranchers OF Rock
creek in the names Of B. \. Pippenger and
w. r. Mahan asking for a perpetual in
junction restraining the defendant com
pany from emptying coal refuse into the
stream.
The motion for the temporary restrain
ing order was made Tuesday evening by
the plaintiffs attorney, -. Walsh of
Helena, at the conclusion of the argn-
ment upon the company's demurrer to
the plaintiffs pleadings.
In arguing the demurrer William Wal
lace, Jr., Of Helena, who appeared TOR
the defendant company, made the state
ment that the coal company had discon-
tinued the practice Of dumping slack in
to the creek and that nothing but water
from the coal washing plant now goes
into the stream In answer to this, the
attorney for the ranchers declared that
if such were the case the defendant com
pany ought not to object to the issuance
Of temporary injunction restraining it
from using the creek for slack dumping
purposes.
After hearing the arguments OF both
sides, which were ably and logically and
adroitly presented, Judge Henry visited
the coal mines, looked over the washer
and later issued the restraining order
temporarily enioining the defendant
, company from permitting anything more
than the waters OF the washer to pass
into the stream.
The court did not pass on the question
raised on demurrer to the plaintiffs
pleadings, which demurrer was to the
effect that the plaintiffs had not in their
complaint set forth facts sufficient to
] constitute cause Of action, butte the
demurrer under advisement and will
, pass on the question thus raised at the
, September term of court.
!, The demurrer was argued with ability
and at length by William Wallace, Jr.
for the defendant company and I. j.
Walsh for the plaintiffs. The celebrated
. Helena attorneys occupied the major
r part of the afternoon and all the even
ing with their arguments. Mr.. Wallace
! lcontended that Mr. Walsh had failed *
j show upon his pleadings that right ex
4 listed for the remedy sought. The plain
y tiffs, he said, had endeavored to establish
d the ground that riparian rights existet
e In them to the lands affected. Tie ar
J. gued that such thing as riparian right
3 was not recognized in Montana; tha
! courts had held that the streams OF tn
v state should be considered in their valu
q to mines and for irrigation purposes an
n that no riparian rights existed where il
e rigation was recognized. He cited a su
" preme court decision in the state c
n. Utah holding that no riparian rights OF
l. tained in that state and held that dt
d cision of the United States suprem
,s court to the effect that the northwee
h was an arid region and that the stream
X of that portion of the United State
should be considered in their connectio
with irrigation purposes should obtai
in establishing the contention that n
riparian rights could be claimed in thi
= state. It was also the contention of tn
plaintiffs that their rights to the streaf
= were granted them when they took u
70 their lands from the government an
Il that the title to the waters Of the streal
+ passed to them as truly as did the lands
o. Mr.. Wallace argued that no such righ
T. could pass from the government to th
- settler, inasmuch as in such case the Sc
a. tier at the mouth o: stream could il
1g sist upon the waters of the stream con
10 ing to his land in their original volum
ne He also contended that it Mr.. Walsh
70 statement was true and could be SUI
or tained that the title was established
ne the land office rather than upon the dat
90 of settlement, which date there was n
20 way of adequately establishing, and
D. which case the Rocky Fork Coal con
pany had prior rights to the stream Owe
20 all the ranchmen who were praying IL
as the injunction.
ce Mr.. Walsh's point was that the go'
II ernment had title in the stream as muc
y, u as in the land and that when this tit
to to passed to the settler similar right Wa
n given him, right which, having nevt
n been broken, was the original right, \
le' matter il at that date mining compan
: might begin to use the waters OF