Fergus County argus. [volume] (Lewistown, Mont.) 1886-1946, 1904-01-27
FAMOUS WATER
CASE REOPENED
Fergus County Witnesses Called tc
Helena to Testify in the United
States Court.
MecAuLEY CITED FOR CONTEMPT
Atidavits Filed Alleging That He
Has Violated an Injunetion-His.
tory Of the Case.

Grass Range stock man, was cited to
appear before Judge Knowles of the
United States circuit court in Hell
n last Monday to show cause why
he should not be punished for con-
tempt of court. Mr.. McCauley left
Friday morning for Helena. Accom-
panying him were John Single. David
Foreman, T. NJ. Shaw and Ole Vim
ger. witnesses for McCauley; and
Cyrus %Sprangler. Mike Lynch. Dan
Tyler, Mark Frost and j. II. Charters,
witnesses for Thomas Cruise. who was
the plaintiff in the original action and
at whose instance McCauley was cit
ed to appear before the U. S. court.
The water right Ease of Thomas
Cruise VS.. N. NJ. McCauley vas n
of the most famous that ever came up
for trial in this state. 1t was com
menced in the district court in 1898
but was removed to the United States
circuit court and tried before Judge
Knowles. In 1899 he rendered his de-
cision, which is important to all hold
ers of water rights and established
the doctrine of riparian ownership
with a force which made it interest
ing to such owners.
The controversy arose yer the wa
tiers of Mcdonald creek. McCauley,
who was the defendant to the suit,
based his claims on a notice Of ap-
preparation, posted at a point where
he afterwards diverted the waters of
said creek by means of a ditch on the
End of July, 1882. This ditch was
only from Is to 80 feet in length,
whereas the land intended to be ir-
rigated was ONE half a mile or more
distant from this ditch. The decision
of Judge Knowles held that this ditch
was not an appropriation Of waters;
but simply an act showing the inten-
ton of McCauley to appropriate them.
In other words, 1t vas constructive
appropriation, where actual %appropria-
ton was required.
The plaintiffs grantor, Chamber
lain, commenced actual operations on
his ditch in the spring of 1888. This
was after the defendant, McCauley,
had posted his notice and dug his
ditch for the purpose of appropriat-
ing the water, but inasmuch as the
defendant did not follow up his in
tention to make such actual appro.
priation within a reasonable time,
the appropriation of Chamberlain was
held to be prior to that Of McCauley
and his right to the water was there
fore held prior to that OF McCauley.
The decree was as follows:
In a case like this | should think
the defendant might divert the waters
of Mcdonald creek for the irrigation
Of his land, provided he did not dam.
age the plaintiff by so doing. Before
the plaintiff could enjoin the defend.
ant from diverting the water from
said creek, he must show that he is
damaged by that act. The plaintiff
has no right to claim, as against de-
PENDANT, that the water of said creek
should be allowed to flow down to his
ranch, in order that he should be al
lowed to irrigate his land taken as
a desert land claim. The grantor OF
plaintiff, Chamberlain, did not file up
on said land until in 1886. Before
that time defendant had completed
his appropriation of the waters of said
creek, and the patent for said land
was made subject to this water right
THE decree in this a S will be
that the defendant be enjoined from
diverting any water from said South
Fork of Mcdonald creek until plain
tiff has, at least at the place where
his ditch enters his land, 100 inches
miners measurement, of the waters
of said creek. This decree will be
made subject to the provision that
there is sufficient water in the said
creek at defendants dam to furnish
this much water.
It is further found by the diver
sion of the waters of said creek, in
the year 1897, plaintiff was damaged
by the defendant McCauley in the
sum of $500, for which he is entitled
to a judgment"
II is claimed that since the decree
McCauley has been disregarding this
decree and appropriating more of the
water than rightfully belongs to him