I dissent. I think the judgment should be affirmed. The majority opinion lays too much stress on collateral issues. My associates undertake to demonstrate that the testimony of the electrical engineer as to the carrying capacity of the pot holes between defendants' dam and plaintiffs' point of diversion, and the maximum flow of the creek amounts to no evidence at all. As to the maximum flow of the creek, that obviously is an immaterial matter so far as the questions involved are concerned. The capacity of the pot holes and their exact number were also immaterial matters.
It is true that the court found that there were about 275 pot holes having a combined capacity greater than the storage capacity of defendants' reservoir. Appellants object to this finding on the ground that it is immaterial to the issues. Obviously the exact number of pot holes and their exact retaining capacity are not of vital importance. The important and undisputed facts are that there are many pot holes between defendants' reservoir and plaintiffs' point of diversion, and that it takes a substantial amount of water to fill them, and that no water reaches plaintiffs' point of diversion until after the pot holes are filled. Obviously then, in light rainfalls, coming when the pot holes are dry or only partially filled, plaintiffs would get no water at the point of their diversion if the water was permitted to flow through defendants' reservoir. It would flow into the *Page 586 pot holes and be of no use to anyone. The only question here involved is whether, under such circumstances, defendants may impound the waters in their reservoir. That they may do so has been held by this court. (Raymond v. Wimsette, 12 Mont. 551,31 P. 537, 33 Am. St. Rep. 604.) This is the rule elsewhere. (67 C.J. 1018; Fenstermaker v. Jorgensen, 53 Utah, 325,178 P. 760; Dern v. Tanner, 60 F.2d 626.) My associates concede this to be the rule.
The difficulty in the case arises from the practical matter of ascertaining under existing conditions just how to determine in advance when defendants may impound the waters without injuring plaintiffs. The court expressly found that the evidence was insufficient upon which to make a determination of the question and reserved the matter for further hearing. It also expressly found that whenever there is sufficient volume of water in the creek at defendants' premises to reach the plaintiffs' point of diversion in any useful quantity up to 656 inches the defendants should provide a headgate or spillway so that the water would not be obstructed from reaching plaintiffs' premises. I think the court was correct in proceeding as it did. It recognized that it had two duties to perform. One was to protect plaintiffs in their prior right to 656 inches of water. The other was to prevent the waste of water so far as practicable. The fact that defendants did not prove what quantity of water on defendants' premises, if released, would reach plaintiffs' point of diversion in a useful quantity would not justify a holding that defendants could not impound any water under any circumstances. Certainly they could impound whatever excess was flowing over and above plaintiffs' 656 inches at plaintiffs' premises. Likewise they could impound such waters as clearly could not reach plaintiffs' point of diversion in any useful quantity.
The practical difficulty is to determine what amount of water flowing into defendants' reservoir at a given time would reach plaintiffs' point of diversion in a useful quantity if permitted to flow, or as stated in the opinion of the Chief Justice: When may defendants impound the waters without injury to plaintiffs? *Page 587 To determine that question under varying conditions might require experimentation or demonstration in order to meet the rule followed in the Raymond Case, supra. Doubtful conditions should be resolved against defendants' right to impound (Donich v.Johnson, 77 Mont. 229, 250 P. 963.) It might require the services of a water commissioner to make these experiments. Certainly, defendants' failure at the supplemental hearing to prove what amount of water released at their dam would reach plaintiffs' premises in a useful quantity does not mean that waters in quantity which would never reach plaintiffs' premises must be permitted to flow to waste for all time. I think the court did right in reserving the question for further consideration. We should not presume in advance of a ruling by the trial court that it will not adequately protect every right of plaintiffs.
The practical way to protect plaintiffs in their prior right is to provide a method by which the water entering defendants' reservoir and impounded by them may be measured as it enters the reservoir at the time of every rainfall. Defendants must then be required to release that quantity of water if it cannot be shown by them that it would not reach plaintiffs' premises in useful quantities, if released. While this may require constant vigilance on the part of the interested parties and lead to some expense, the situation is no different from that in the case of any other water appropriator who must resort to contempt or other proceedings to protect his right if and when it is invaded by another.
The opinion written by the Chief Justice recognizes defendants' right to impound waters that cannot reach plaintiffs' point of diversion in useful quantities, but undertakes to say in effect that that issue must be litigated in a separate action rather than in this action, thus adding to the expense of litigation. I think the question was properly reserved by the court by motion in this action, thus saving to the litigants the cost of filing a separate action.
It is true the court stated that the question reserved was the right to determine later what amount of water at defendants' *Page 588 premises is necessary to reach plaintiffs' point of diversion in useful quantity, but this is but the means of determining when defendants may impound the waters without injury to plaintiffs.
I think the judgment should be affirmed in its entirety.