Hornbuckle v. Stafford

The answer of the appellants contained denials of all the material allegations of the complaint, and specially averred that in the year 1869 a company named the Hellgate & Avalanche Ditch Company was formed by Samuel Clem and four associates to construct a ditch to conduct the waters of Avalanche creek to the foot-hills of Cave gulch; that appellee became a member of the company and contributed to its property the White and Tower ditch and the water connected therewith, and the other associates contributed certain mining ground, and that each member of the company owned one-sixth of the common property; that the company constructed its proposed ditch, and afterwards purchased the Basey ditch, etc., and that in the fall of the year 1870 all the waters of the Avalanche creek were turned into the Hellgate & Avalanche ditch, including all the water to which the appellee had any title, and thenceforward the water had always been used by the company as the joint property of its members, and that the appellee, until a short time before the beginning of this suit, never set up any claim to the exclusive use of any part thereof; that on March 30, 1878, the appellee conveyed, by his deed of that date, to the appellants all his interest in the Hellgate & Avalanche Ditch Company, and since that time they have been the exclusive owners of the Hellgate & Avalanche ditch and all the water-rights connected therewith, having previously purchased the interests of the other owners. The answer denied that on July 11 1871, a decree was rendered as averred in the complaint, but admitted that a decree was rendered in a cause wherein John Gallagher and the appellants were plaintiffs, and Basey and the appellee and others were defendants, adjudging to the appellee 35 inches of the water of Avalanche creek, and averred that the decree was so entered, awarding the water aforesaid to the appellee, by the consent of the members of said company, and because the title to said water-right stood in the name of the appellee, and for no other reason, but that the water was awarded to the appellee in trust for the benefit of the owners of the Hellgate & Avalanche Ditch Company.

Issue was taken on the answer by replication, and the issues of fact were tried by a jury, which returned a general verdict for the appellee, and also returned certain special findings, as follows: They found that the 35 inches of water, decreed to the appellee by the decree of July 11, 1879, was held by the appellee for himself, and as his own property, and not in trust for the members of the Hellgate & Avalanche Ditch Company, and that he had never parted with his right to said water to the company, either before or after the decree, and that after the decree the water did not belong to the Hellgate & Avalanche Ditch Company. Upon the general and special verdict of the jury, as well as upon the pleadings, proceedings, and evidence in the cause, the court decreed that the appellee was entitled to the possession and enjoyment of 35 inches of the water of Avalanche creek to flow in at the head of the White and Tower ditch, or 125 inches to flow in at the head of the Basey ditch, and that he hold and enjoy the same, and that the appellants be forever enjoined from interfering with the unobstructed flow of said water to the ditches of the appellee. From this decree Hornbuckle and Marshall appealed to the supreme court of the territory of Montana, by which the decree was affirmed. The same appellants have brought, by the present appeal, the decree of the supreme court of Montana to this court for review.

Luther R. Pike, for plaintiff in error and appellant.

No counsel for defendant in error and appellee.

WOODS, J.