On Petition for Rehearing. Defendant Armington has filed a petition for rehearing. Such petition "may be presented upon the following grounds and none others: That some fact, material to the decision, or some question decisive of the case submitted by counsel, was overlooked by the Court, or that the decision is in conflict with an express statute or controlling decision to which the attention of the court was not directed." Rule of Court XV, subdiv. 2.
Defendant's petition is based upon all the grounds mentioned in the rule.
Defendant opens his argument with the statement: "This cause involved an action for injunctive relief and nothing else." He then states that all the plaintiff was demanding was mandatory relief to force defendant to reinstall an orifice and dam in his diversion ditch and injunctive relief to enjoin defendant from removing the dam and orifice after the same had been reinstalled urging that the question of water rights was not before the court at all and that this court's decision holding that plaintiff acquired a water right in 1942 "arbitrarily and unjustly gives to the plaintiff and respondent in this case rights that he never had or claimed to have."
In paragraph V of the complaint it is alleged that "about the 15th day of November, 1939, plaintiff herein appropriated all of the flow of said Tallow Creek over and above and subject to the prior appropriations made by the predecessors of defendant in the amount of 30 cubic feet per second as set forth in paragraph IV hereof * * *"
These allegations are denied in the answer, paragraph 3 thereof reading: "Answering the allegations contained in paragraph V thereof, defendant denies that he has, and alleges that he does not have any information or knowledge sufficient to form a belief as to the truth of the facts therein alleged and therefore denies the same."
In paragraph 4 of his answer defendant admits that the diversion *Page 16 ditch "was and is capable of carrying 30 cubic feet per second of the waters of said Tallow Creek so appropriated," but denies the allegations of paragraph VI of the complaint to the effect that said "diversion ditch as so constructed was and is capable of carrying a much greater amount of the waters of Tallow Creek than the 30 cubic feet per second appropriated and used by the predecessors of defendant, and was capable of and did divert and carry all of the flow of water in said Tallow Creek so that none of said waters were available for the use of plaintiff."
In paragraph 6 of his answer defendant alleges that on December 9, 1942, he purchased the described lands, water, dam and ditch, of which he has since been the owner and to which he has and is entitled to the possession and exclusive use and that the dam and pipe installed by plaintiff in the fall of 1941 wrongfully and unlawfully obstructed defendant's diversion ditch and the flow of water therein. These allegations of paragraph 6 of the answer were denied and placed in issue by plaintiff's reply.
The prayer of the complaint is for an order and decree: (1) To require defendant "to reinstall said orifice and dam in said diversion ditch as provided for in the agreement between plaintiff and Tetrault;" (2) to enjoin and restrain defendant "from removing said dam and orifice after the same has been reinstalled;" and (3) "For such other and further relief as to the court may seem equitable, proper and just."
It is apparent from the pleadings that the first and chief purpose of the suit was to obtain a decree that "defendant be required to reinstall said orifice and dam" which, in the fall of 1945, he had removed over plaintiff's protests and objections.
To support his contention that in this action the court was without right to determine and hold that plaintiff acquired a water right in 1942 the defendant cites and relies upon the cases of: State ex rel. Reeder v. District Court, 100 Mont. 376,47 P.2d 653; National Bank of Montana v. Bingham, 83 Mont. 21,35, 269 P. 162; Gibbons v. Huntsinger, 105 Mont. 562, *Page 17 574, 74 P.2d 443; and Blinn v. Hutterische Society of Wolf Creek, 58 Mont. 542, 551, 194 P. 140.
On issues squarely presented by the pleadings the respective rights of the respective parties to the use of waters of Tallow Creek, evidence determinative thereof was introduced without objection. In this respect the instant case differs from the cases above cited, rendering them wholly inapplicable.
Defendant asserts that plaintiff was a trespasser and that his[5] license should be revoked. The undisputed evidence shows that at a time when Tetrault owned the property, plaintiff made the installations with Tetrault's consent and that thereafter defendant purchased the property from Tetrault. Having made the installation with the owner's consent plaintiff was no trespasser and he showed a right in himself to require defendant to reinstall the dam and orifice and to have defendant enjoined from further molesting or interfering with same when reinstalled.
Defendant asserts that the water appropriated by plaintiff was[6] "artificial water" and not subject to appropriation, citing 1 Kinney on Irrigation Water Rights, 2d Ed., sec. 316, 473, and sec. 662 of Volume 2. The sections cited fail to sustain defendant's contention. Plaintiff did not make his appropriation from "Man-made ditches, canals, tunnels, flumes, or other artificial conduits constructed for the purpose of conveying water," as defined in the authority cited. The water that passed over the spillway in defendant's dam onto plaintiff's land was "surplus water" in excess of the 30 cubic feet per second of time to which defendant was entitled.
Section 7097, R.C.M. 1935, defines "surplus water" and requires that a prior appropriator must "turn, and cause [it] to flow back into the stream." See Tucker v. Missoula Light Ry. Co., 77 Mont. 91, 101, 250 P. 11, 15, where the court in construing said section said: "It is his duty to permit the excess to remain in the creek or, having diverted it, to return it to the creek in such manner that it will be available to subsequent appropriators or decreed rights." See also Galiger v. McNulty, *Page 18 80 Mont. 339, 356, rehearing page 359, 260 P. 401, page 406; Gans Klein Inv. Co. v. Sanford, 91 Mont. 512, 522, 8 P.2d 808,811, where the court held that, subsequent appropriators of water "may compel * * * a prior appropriator, to release water for their use which he does not need for a beneficial purpose." See also Volumes 1 and 2 Kinney on Irrigation Water Rights, 2d Ed., secs. 321, 727 and 783.
Defendant contends that for plaintiff to make a valid[7] appropriation he must actually divert the water from the channel of the stream and that this was not done. In other words, defendant claims that after the water goes over the spillway onto his land, plaintiff must allow the water to flow back into the channel of the stream which plaintiff testified was considerably lower than the spillway, and then construct a dam in the stream so as to raise the water to the height of plaintiff's land and then divert it by a ditch from the channel of the stream so dammed. Such would be an idle, useless and expensive procedure. "All that is necessary to make a valid appropriation is that there be an actual diversion of the water from the natural channel or other source of supply, with an intent to apply it to some beneficial use, followed by an actual application of the water either to the use designated or to some other within a reasonable time, and any lawful means toward obtaining that end may be used." 2 Kinney on Irrigation Water Rights, 2d Ed., sec. 825; see also, sec. 723. (Emphasis supplied.)
The witness Lillis, a duly qualified engineer and expert on[8] irrigation problems, testified that after the surplus water passed over the spillway it spread out over the meadowland, which was plaintiff's land and was prevented from returning to the creek channel below the dam by a low dike running to the west. Plaintiff Clausen testified that he only diverted the water that came from Tallow Creek at two designated points, both on his land, when and as the water left the spillway; that during the haying season when a freshet came down Tallow Creek, he would put hay in the spillway to prevent the water going down his ditchonto his hay, and that he irrigated about 100 acres of *Page 19 alfalfa during the years 1942 to 1945 from the water so diverted. Thus the uncontradicted evidence show that plaintiff did divert and use this water for a beneficial purpose. This constituted a valid appropriation under the Montana authorities cited in the opinion. See also, 2 Kinney on Irrigation Water Rights, 2d Ed., secs. 730 and 825.
The evidence as to the diversion and the beneficial use of the[9] water by plaintiff after this surplus water passed over the spillway was admitted without objection and the complaint is deemed amended to show such appropriation in 1942 and before defendant acquired the Tetrault property. Harbolt v. Hensen,78 Mont. 228, 253 P. 257; Ellinghouse v. Ajax Live Stock Co.,51 Mont. 275, 152 P. 481, L.R.A. 1916D, 836 and notes.
Defendant asserts there is no evidence to show the ditch was not as large in 1917, when Marsh filed on the public land now owned by plaintiff, as it was in 1939 when plaintiff filed his notice of appropriation. If such was a fact it was the duty of defendant to show it at the trial and not to so speculate and surmise in the petition for a rehearing. But assuming for the moment that such a condition was possible even in the face of the fact that the ditch had 22 years to enlarge after Marsh filed on the land in 1917, the evidence conclusively shows that neither defendant nor his predecessors had any need or use for a ditch at any time larger than the one described in the notice of appropriation by Harlacher in 1903, to-wit: four feet wide on bottom, five feet wide on top and one foot deep, and sufficient to irrigate 300 to 400 acres. Under such circumstances the plaintiff could legally appropriate so much of the surplus water in excess of defendant's prior appropriation as plaintiff had put to beneficial use. In the year 1942 plaintiff placed such water to beneficial use and defendant was without right to tear out the orifice and dam which had been placed in said ditch in the fall of 1941 with the consent of the then owner Tetrault and which were required to enable plaintiff to obtain the water which he has so appropriated.
The judgment of the trial court which inter alia requires *Page 20 defendant to erect, construct and install a proper and sufficient dam, gate or other device so that not more than 30 cubic feet of water per second of time will be permitted to flow through such ditch upon the lands of defendant was correct. Wanting in merit the petition for rehearing is denied.
Associate Justices Freebourn, Angstman, Metcalf and Bottomly, concur.
Rehearing denied December 12, 1949.