1. Where in an equity case a demurrer is filed to the complaint
and the record does not disclose what disposition was made of it,
and an answer is subsequently filed, upon which the parties proceed
to a hearing, it will be presumed on appeal that the demurrer was
abandoned.
2. Although by the Organic Act of the Territory of Montana,
common law and chancery jurisdiction is exercised by the same
court, and by legislation of the territory the distinctions between
the pleadings and modes of procedure in common law actions and
those in equity suits are abolished, the essential distinction
between law and equity is not changed. The relief which the law
affords must be administered through the intervention of a jury,
unless a jury be waived; the relief which equity affords must be
applied by the court itself, and all information presented to guide
its action, whether obtained through masters' reports or findings
of a jury, is merely advisory.
3. The provision in the statute of Montana of 1867 regulating
proceedings in civil cases declaring "that an issue of fact shall
be tried by a jury, unless a jury trial is waived" does not require
the court in an equity case to regard the findings of a jury called
in the case as conclusive, though no application to vacate the
findings be made by the parties, if in its judgment they are not
supported by the evidence.
4. In the Pacific states and territories, a right to running
waters on the public lands of the United States for purposes of
irrigation may be
Page 87 U. S. 671
acquired by prior appropriation, as against parties not having
the title of the government. The right, exercised within reasonable
limits, having reference to the condition of the country, and the
necessities of the community, is entitled to protection. This rule
obtains in the Territory of Montana, and is sanctioned by its
legislation.
5. By the Act of Congress of July 26, 1866, which provides
"That whenever by priority of possession, rights to the use of
water for mining, agricultural, manufacturing, or other purposes
have vested and accrued, and the same are recognized and
acknowledged by the local customs, laws, and decisions of courts,
the possessors and owners of such vested rights shall be maintained
and protected in the same,"
the customary law with respect to the use of water, which had
grown up among occupants of the public land under the peculiar
necessities of their condition, is recognized as valid. That law
may be shown by evidence of the local customs or by the legislation
of the state or territory or the decisions of the courts. The union
of the three conditions in any particular case is not essential to
the perfection of the right by priority, and in case of conflict
between a local custom and a statutory regulation, the latter, as
of superior authority, will control.
The organic act of the territory just named recognizes the
distinction between the jurisdictions of law and equity, but
requires that proceedings in both be in the same court.
By a statute of the territory regulating proceedings in such
cases in courts of the territory, only one form of civil action is
allowed, and it is there enacted that "issues of fact shall be
tried by a jury, unless a jury is waived or a reference ordered,"
in a way which the statute provides.
In this state of the law, Gallagher and others filed a bill in
one of the district courts of the territory, against Basey,
Stafford, and others,
praying for an injunction to
restrain them from diverting the water of a steam known as
Avalanche Creek, in the said territory, to which they, the
plaintiffs, asserted a right by prior appropriation for the
purposes of irrigation. They alleged that in the year 1866, they
and their predecessors in interest took up for settlement and
cultivation certain farms, designated by them as "ranches," on the
public lands of the United States near the creek in the County of
Meagher in that territory, and that they or their predecessors in
interest had ever since occupied and
Page 87 U. S. 672
cultivated the same; that it was necessary to irrigate the land
for its successful cultivation, and to raise grain, hay, and
vegetables; that they accordingly, during that year and the
following spring, constructed, at great labor and expense, a ditch
by which they intersected the creek a short distance from its
junction with the Missouri River, and conveyed its water to their
farms and used it for irrigation; that at this time the water was
not appropriated by any person, and was subject to appropriation by
them; that by their ditch they appropriated the water to the extent
of five hundred inches according to the measurement of miners; that
this amount was necessary to the successful cultivation of the
land, and by means of it they and their predecessors in interest
were enabled to cultivate the farms and raise large and valuable
crops of grain, hay, and vegetables.
They further alleged that subsequent to this appropriation by
them, and during the years 1867 and 1870 and the intervening
period, the defendants erected dams across the creek above the head
of their ditch and diverted the water of the stream, and thereby
wholly deprived them of its use and enjoyment, preventing their
cultivation of the farms and rendering them useless; that had the
water been permitted to flow, unobstructed by the dams of the
defendants, there would have been a sufficient supply for
irrigating and cultivating the farms. They therefore sought the aid
of the court to restrain the defendants from diverting the water,
except so much as might be in excess of the five hundred inches
appropriated by them.
To this complaint the defendants demurred on the ground, 1st
that the cause of action alleged was barred by the statute of
limitations, and 2d that the complaint did not state a cause of
action. The record did not disclose what disposition was made of
the demurrer.
An answer was subsequently filed which denied the several
allegations of the complaint, except the one which averred the
possession by the plaintiffs of their farms.
The record was a very defective one, and presented the case
obscurely. Gathering, however, what could be gathered
Page 87 U. S. 673
from its imperfect statements, it would seem that at the May
Term of the district court of the territory in 1871, previous to
the final hearing, which was had at the subsequent July Term, a
jury was called in the case, to which certain questions were
submitted and its answers taken. The jury found substantially that
parties by the name of White and Torvais, prior to September or
October, 1866, had appropriated the water of the creek to the
extent of thirty-five inches; that these parties, during one of
those months, gave the plaintiffs and their predecessors the right
to connect with their ditch and to extend and enlarge the same;
that the plaintiffs and their predecessors commenced such
enlargement during those months, and increased the capacity of the
ditch to two hundred and fifty inches; that White and Torvais
afterwards, in 1867, sold their water right and ditch to the
defendant Stafford; that the defendant Basey, had no interest in
privity with the other defendants, and diverted the water for his
own use by agreement with the plaintiffs, and that neither of the
other defendants had diverted water to the injury of the plaintiffs
previous to the commencement of the action.
Upon these special findings, both parties moved the court for
judgment -- the defendants that the complaint be dismissed, the
plaintiffs that a decree pass in their favor. On these motions the
court heard the whole case "on the pleadings, evidence, and
proceedings therein, and the findings of the jury," and rendered a
decree adjudging that the defendant Stafford was entitled to
thirty-five inches of the water, and that as against the
defendants, saving this amount, the plaintiffs were entitled to two
hundred and fifteen inches of the water, and decreed an injunction
against any diversion of the water by the defendants which would
prevent its flow to this extent in the stream to the ditch of the
plaintiffs. From this decree an appeal was taken to the supreme
court of the territory, and there the decree was affirmed. From
that affirmance this appeal was taken.
In rendering the decree, the district court disregarded a
portion of the findings of the jury and adopted others, and
Page 87 U. S. 674
this action was approved by the supreme court of the territory,
and constituted one of the errors assigned here for the reversal of
its decree.
The correctness or incorrectness of the decree appealed from
depended perhaps, in part, upon certain statutes.
They were thus:
One was an act of Congress of July 26, 1866, [
Footnote 1] which enacted as follows:
"SECTION 9. Whenever
by priority of possession, rights
to the use of water for mining, agricultural, manufacturing or
other purposes have vested and accrued,
and the same are
recognized and acknowledged by the local customs, laws, and
decisions of courts, the possessors and owners of such vested
rights shall be maintained and protected in the same. And the right
of way for the construction of ditches and canals for the purposes
aforesaid is hereby acknowledged and confirmed."
The other statutes were territorial acts. The first was an act
passed on the 12th of January, 1865, entitled
"An act to
protect and regulate the irrigation of land in Montana
territory." The first section of this act thus enacted:
"All persons who claim, own, or hold a possessory right or title
to any land, or parcel of land, within the boundary of Montana
territory, as defined in the organic act of this territory, when
those claims are on the bank, margin, or neighborhood of any stream
of water, creek, or river, shall be entitled to the use of the
water of said stream for the purpose of irrigation, and making said
claim available to the full extent of the soil for agricultural
purposes."
The fourth section was thus:
"In case the volume of water in said stream or river shall not
be sufficient to supply the continual wants of the entire country
through which it passes,
then the nearest justice of the peace
shall appoint three commissioners, as hereinafter provided, whose
duty it shall be to apportion, in a just and equitable proportion,
a certain amount of said water, upon certain alternate weekly days,
to different localities, as they may in their judgment think
best
Page 87 U. S. 675
for the interest of all parties concerned, and with a due
regard to the legal rights of all."
In 1870, this act of 1865 was repealed and another act was
passed making provision for the construction of ditches and the
irrigation of agricultural lands. This enacted in its second,
fifth, and sixth sections as follows:
"SECTION 2. Any person or persons, corporation or company, who
may have or hold a title or possessory right or title to any
agricultural lands within the limits of this territory, as defined
by the organic act thereof, shall be entitled to the use and
enjoyment of the waters of the streams or creeks in said territory
for the purposes of irrigation and making said land available for
agricultural purposes to the full extent of the soil thereof."
"SECTION 5. In all controversies respecting the rights to water
under the provisions of this act
the same shall be determined
by the date of the appropriation as respectively made by the
parties."
"SECTION 6. The waters of the streams or creeks of the
territory, may be made available to the full extent of the capacity
thereof for irrigating purposes, without regard to deterioration in
quality or diminution in quantity, so that the same do not
materially affect or impair the rights of the prior appropriator,
but in no case shall the same be diverted or turned from the
ditches or canals of such appropriator, so as to render the same
unavailable."
In 1871 and 1872, when the statutes of Montana were revised and
a code of laws and practice was established for the territory, this
last act was incorporated into the system and reenacted as part of
it. [
Footnote 2]
Page 87 U. S. 679
MR. JUSTICE FIELD, after stating the facts of the case,
delivered the opinion of the Court as follows:
The record does not disclose what disposition was made of the
demurrer to the complaint, but as an answer was subsequently filed
upon which the parties proceeded to a hearing, the presumption is
that it was abandoned.
By the organic act of the territory, the district courts are
invested with chancery and common law jurisdiction. The two
jurisdictions are exercised by the same court, and, under the
legislation of the territory, the modes of procedure up to the
trial or hearing are the same whether a legal or equitable remedy
is sought. The suitor, whatever relief he may ask, is required to
state "in ordinary and concise language"
Page 87 U. S. 680
the facts of his case upon which he invokes the judgment of the
court. But the consideration which the court will give to the
questions raised by the pleadings, when the case is called for
trial or hearing, whether it will submit them to a jury, or pass
upon them without any such intervention, must depend upon the
jurisdiction which is to be exercised. If the remedy sought be a
legal one, a jury is essential unless waived by the stipulation of
the parties; but if the remedy sought be equitable, the court is
not bound to call a jury, and if it does call one, it is only for
the purpose of enlightening its conscience, and not to control its
judgment. The decree which it must render upon the law and the
facts must proceed from its own judgment respecting them, and not
from the judgment of others. Sometimes in the same action both
legal and equitable relief may be sought, as for example where
damages are claimed for a past diversion of water, and an
injunction prayed against its diversion in the future. Upon the
question of damages, a jury would be required; but upon the
propriety of an injunction, the action of the court alone could be
invoked. The formal distinctions in the pleadings and modes of
procedure are abolished, but the essential distinction between law
and equity is not changed. The relief which the law affords must
still be administered through the intervention of a jury unless a
jury be waived; the relief which equity affords must still be
applied by the court itself, and all information presented to guide
its action, whether obtained through masters' reports or findings
of a jury, is merely advisory. Ordinarily, where there has been an
examination before a jury of a disputed fact, and a special finding
made, the court will follow it. But whether it does so or not must
depend upon the question whether it is satisfied with the verdict.
This discretion to disregard the findings of the jury may
undoubtedly be qualified by statute; but we do not find anything in
the statute of Montana, regulating proceedings in civil cases,
which affects this discretion. That statute is substantially a copy
of the statute of California as it existed in 1851, and it was
frequently held by the supreme
Page 87 U. S. 681
court of that state, that the provision in that act requiring
issues of fact to be tried by a jury, unless a jury was waived by
the parties, did not require the court below to regard as
conclusive the finding of a jury in an equity case, even though no
application to vacate the findings was made by the parties, if in
its judgment they were not supported by the evidence. That court
only held that the findings, when not objected to in the court
below and the judge was satisfied with them, could not be
questioned for the first time on appeal. [
Footnote 3]
The question on the merits in this case is whether a right to
running waters on the public lands of the United States for
purposes of irrigation can be acquired by prior appropriation as
against parties not having the title of the government. Neither
party has any title from the United States; no question as to the
rights of riparian proprietors can therefore arise. It will be time
enough to consider those rights when either of the parties has
obtained the patent of the government. At present, both parties
stand upon the same footing; neither can allege that the other is a
trespasser against the government without at the same time
invalidating his own claim.
In the late case of
Atchison v. Peterson, [
Footnote 4] we had occasion to consider
the respective rights of miners to running waters on the mineral
lands of the public domain, and we there held that by the custom
which had obtained among miners in the Pacific states and
territories, the party who first subjected the water to use or took
the necessary steps for that purpose was regarded, except as
against the government, as the source of title in all controversies
respecting it; that the doctrines of the common law declaratory of
the rights of riparian proprietors were inapplicable, or applicable
only to a limited extent, to the necessities of miners, and were
inadequate to their protection; that the equality of right
Page 87 U. S. 682
recognized by that law among all the proprietors upon the same
stream, would have been incompatible with any extended diversion of
the water by one proprietor, and its conveyance for mining purposes
to points from which it could not be restored to the steam; that
the government by its silent acquiescence had assented to and
encouraged the occupation of the public lands for mining; and that
he who first connected his labor with property thus situated and
open to general exploration, did in natural justice acquire a
better right to its use and enjoyment than others who had not given
such labor; that the miners on the public lands throughout the
Pacific states and territories, by their customs, usages, and
regulations, had recognized the inherent justice of this principle,
and the principle itself was at an early period recognized by
legislation and enforced by the courts in those states and
territories, and was finally approved by the legislation of
Congress in 1866. The views there expressed and the rulings made
are equally applicable to the use of water on the public lands for
purposes of irrigation. No distinction is made in those states and
territories by the custom of miners or settlers, or by the courts,
in the rights of the first appropriator from the use made of the
water, if the use be a beneficial one.
In the case of
Tartar v. Spring Creek Water and Mining
Company, decided in 1855, the Supreme Court of California
said:
"The current of decisions of this Court go to establish that the
policy of this state, as derived from her legislation, is to permit
settlers in all capacities to occupy the public lands, and by such
occupation to acquire the right of undisturbed enjoyment against
all the world but the true owner. In evidence of this, acts have
been passed to protect the possession of agricultural lands
acquired by mere occupancy; to license miners; to provide for the
recovery of mining claims; recognizing canals and ditches which
were known to divert the water of streams from their natural
channels for mining purposes; and others of like character. This
policy has been extended equally to all pursuits, and no partiality
for one over another has been evinced, except
Page 87 U. S. 683
in the single case where the rights of the agriculturist are
made to yield to those of the miner where gold is discovered in his
land. . . . The policy of the exception is obvious. Without it, the
entire gold region might have been enclosed in large tracts under
the pretense of agriculture and grazing, and eventually what would
have sufficed as a rich bounty to many thousands would be reduced
to the proprietorship of a few. Aside from this, the legislation
and decisions have been uniform in awarding the right of peaceable
enjoyment to the first occupant, either of the land or of anything
incident to the land. [
Footnote
5]"
Ever since that decision, it has been held generally throughout
the Pacific states and territories that the right to water by prior
appropriation for any beneficial purpose is entitled to protection.
Water is diverted to propel machinery in flour mills and saw mills
and to irrigate land for cultivation as well as to enable miners to
work their mining claims, and in all such cases, the right of the
first appropriator, exercised within reasonable limits, is
respected and enforced. We say within reasonable limits, for this
right to water, like the right by prior occupancy to mining ground
or agricultural land, is not unrestricted. It must be exercised
with reference to the general condition of the country and the
necessities of the people, and not so as to deprive a whole
neighborhood or community of its use and vest an absolute monopoly
in a single individual. The act of Congress of 1866 recognizes the
right to water by prior appropriation for agricultural and
manufacturing purposes, as well as for mining. Its language is:
"That whenever by priority of possession, rights to the use of
water for mining, agricultural, manufacturing, or other purposes
have vested and accrued and the same are recognized and
acknowledged by the local customs, laws, and decisions of courts,
the possessors and owners of such vested rights shall be maintained
and protected in the same."
It is very evident that Congress intended, although the
language
Page 87 U. S. 684
used is not happy, to recognize as valid the customary law with
respect to the use of water which had grown up among the occupants
of the public land under the peculiar necessities of their
condition; and that law may be shown by evidence of the local
customs, or by the legislation of the state or territory, or the
decisions of the courts. The union of the three conditions in any
particular case is not essential to the perfection of the right by
priority, and in case of conflict between a local custom and a
statutory regulation, the latter, as of superior authority, must
necessarily control.
This law was in force when the plaintiffs in this case acquired
their right to the waters of Avalanche Creek. There was also in
force an Act of the territory, passed on the 12th of January, 1865,
to protect and regulate the irrigation of land, which declared in
its first section that all persons who claimed or held a possessory
right or title to any land within the territory on the bank,
margin, or neighborhood of any stream of water should be
"entitled to the use of the water of said stream for the purpose
of irrigation and making said claim available to the full extent of
the soil for agricultural purposes."
Another section provided that in case the volume of water in the
stream was not sufficient to supply the continual wants of the
entire country, through which it passed, an apportionment of the
water should be made between different localities by commissioners
appointed for that purpose. This last section has no application to
the present case, for it is not pretended that there was not water
enough in the district where Avalanche Creek flows to supply the
wants of the country, and the section itself was repealed in 1870.
[
Footnote 6]
In January of that year, another act was passed by the
Legislature of Montana upon the same subject, which recognizes the
right by prior appropriation of water for the purposes of
irrigation, and declares that all controversies respecting the
rights to water under its provisions shall be
Page 87 U. S. 685
determined by the date of the appropriation as respectively made
by the parties, and that the water of the streams shall be made
available to their full extent for irrigating purposes, without
regard to deterioration in quality or diminution in quantity,
"so that the same do not materially affect or impair the rights
of the prior appropriator; but in no case shall the same be
diverted or turned from the ditches or canals of such appropriator
so as to render the same unavailable. [
Footnote 7]"
Several decisions of the Supreme Court of Montana have been
cited to us recognizing the right by prior appropriation to water
for purposes of mining on the public lands of the United States,
and there is no solid reason for upholding the right when the water
is thus used which does not apply with the same force when the
water is sought on those lands for any other equally beneficial
purpose. In
Thorp v. Freed, the subject was very ably
discussed by two of the justices of that court, who differed in
opinion upon the question in that case, where both parties had
acquired the title of the government. The disagreement would seem
to have arisen in the application of the doctrine to a case where
title had passed from the government, and not in its application to
a case where neither party had acquired that title. In the course
of his opinion, Mr. Justice Knowles stated that ever since the
settlement of the territory, it had been the custom of those who
had settled themselves upon the public domain and devoted any part
thereof to the purposes of agriculture to dig ditches and turn out
the water of some stream to irrigate the same; that this right had
been generally recognized by the people of the territory, and
had been universally conceded as a necessity of agricultural
pursuits. "So universal," added the justice,
"has been this usage that I do not suppose there has been a
parcel of land, to the extent of one acre cultivated within the
bounds of this territory that has not been irrigated by water
diverted from some running stream. [
Footnote 8] "
Page 87 U. S. 686
We are satisfied that the right claimed by the plaintiffs is one
which, under the customs, laws, and decisions of the courts of the
territory, and the Act of Congress, should be recognized and
protected.
Decree affirmed.
[
Footnote 1]
14 Stat. at Large 253.
[
Footnote 2]
Laws of Montana; Codified Statutes, 1871 and 1872, p. 498.
[
Footnote 3]
Still v. Saunders, 8 Cal. 287; .Goode v. Smith,. 13
id. 81; .Duff v. Fisher,. 15
id. 376.
See
also Koppikus v. State Capitol Commissioners, 16
id.
248; and
Weber v. Marshall, 19
id. 447.
[
Footnote 4]
Supra, p.
87 U. S. 507.
[
Footnote 5]
Per Heydenfeldt, J., 5 Cal. 397.
[
Footnote 6]
Session Laws of 1865, 367.
[
Footnote 7]
Session Laws of 1870, 57.
[
Footnote 8]
1 Mont. 652, 665.
