This is an appeal from a judgment of dismissal with costs to defendants entered after the defendants' demurrer to plaintiff's complaint was sustained and after plaintiff elected to stand upon his complaint. The complaint asks for a declaratory judgment and for relief from the judgment entered in the district court of Powell county in cause No. 2839 after the decision of this court on the appeal reported in Woodward v. Perkins, 116 Mont. 46,147 P.2d 1016, that defendants be restrained from interfering with plaintiff in pursuing the relief here sought.
In substance the complaint alleges that plaintiff owns lands in the Dempsey Creek area in Powell county on which there are depressions or "pot holes" forming natural reservoirs holding water for long periods of time but which eventually escapes through the porous gravelly soil to the bottom of a plateau where it can be picked up in drains and measured in amount and returned to the stream to be recaptured and used for irrigation; that beginning in 1908 and continuing to 1939 plaintiff diverted waters from the upper reaches of Dempsey Creek during periods when the water would not be applied to any beneficial use by any appropriator but which would otherwise run to waste and flowed such water into the "pot holes" by means of ditches; that as it seeped out of the "pot holes" to the foot of the plateau it was picked up in drains and used by plaintiff for irrigation purposes; that had plaintiff not thus captured the water it would have run to waste into Deer Lodge river without anyone having beneficial use thereof; that the issue in cause No. 2839 was whether the waters picked up in the drains at the foot of the plateau were the same waters which plaintiff diverted from Dempsey Creek and transported into the "pot holes," as claimed by this plaintiff in his cross-complaint in that action; that the district court in cause No. 2839 held in favor of this plaintiff, defendant in that action, but on appeal (Woodward v. Perkins,116 Mont. 46, 147 P.2d 1016) this court reversed the trial court and held that plaintiff failed to submit sufficient proof *Page 597 to substantiate his claim that the waters picked up in the drains were the same waters as those put in the "pot holes" and that the proof was too speculative. The judgment was reversed and the cause remanded with instruction to enter a decree for plaintiff (defendant here) and restraining this plaintiff from asserting any claim of right based upon his cross-complaint.
Plaintiff here alleges in his complaint that the judgment entered by the trial court after remittitur from this court was too broad in that it permanently restrains him from using any of the drains to collect water and from doing any of the things complained of in the complaint in that action and in that it orders all waters seeping or escaping from the pot holes shall be distributed to and among the water users of and from Dempsey Creek and in that it perpetually restrains plaintiff here from asserting any claim of right based upon his cross-complaint in action No. 2839.
Plaintiff alleges that since the decree was entered in the district court on December 30, 1944, he has not stored any waters in the "pot holes" and in consequence there has been no water seeping into the drains and that the waters which he would have run into the "pot holes" has been permitted to run to waste which were it not for the restraining order he would have put to a beneficial use. He alleges that the reason there is not now any water at the foot of the plateau to be picked up in the drains is that he ceased to run water into the "pot holes" and that such water which he formerly placed in the "pot holes" now runs to waste. He alleges that he is able now to furnish demonstrative proof that the waters picked up in the drains was water placed in the "pot holes," but that he is prevented from making further experiments by the restraining order in question.
Defendants contend that plaintiff is now precluded from maintaining this action because of the holding in the case of Woodward v. Perkins, Mont., 171 P.2d 997. That was an appeal from the judgment entered in the trial court after reversal *Page 598 of the case by this court in the opinion reported in 116 Mont. 46,147 P.2d 1016.
It is true that the question there presented is the same as the question here presented. But the court did not in that opinion preclude plaintiff from relief. True two members of the court thought he was not entitled to any relief. Two thought he was entitled to relief. The fifth member of the court, whose opinion was necessary to constitute a majority of the court, had this to say [171 P.2d 1005]: