I dissent. We are not concerned with what might have been adjudicated in 1892, but with what was adjudicated, namely, the water of Dempsey Creek. If Quinlan Slough was then a tributary its water rights held by parties to the suit were adjudicated, whether or not it later ceased to be a tributary. If, on the other hand, Quinlan Slough was not then a tributary its waters were not adjudicated, whether or not it later became one.
Every man's right to his day in court before being deprived of his property is such a fundamental element of any real justice that an adjudication must not be stretched to cover what was not *Page 177 clearly included within it. The plaintiff's water right was appropriated without question in 1872 and has been used continuously by plaintiff and his predecessors, William Walker and Herman Johnson, from that time to this. It was never questioned before or during the adjudication of 1892 nor until 1935, forty-three years thereafter, and plaintiff then immediately instituted this suit. Obviously, after such long continued use it would have been hopeless for defendants to attempt a present attack upon the validity of plaintiff's water right on the merits. The only hope was to contend that in 1892 the slough was a tributary of the creek and that plaintiff's water right, though used without objection during and for twenty years before and forty-three years after the adjudication, was lost by his predecessor's failure to submit it to adjudication in that suit.
If, as a matter of law, that is actually the situation defendants are of course entitled seasonably to take advantage of it; but under the circumstances, after a silence of nearly half a century since the adjudication, I do not understand how a court of equity can properly entertain the contention. It is the duty of an equity court to deny relief of its own motion whenever it appears that the demand is stale and that the delay is prejudicial or inequitable to the opposing party. (Crosby v.Robbins, 56 Mont. 179, 182 P. 122.) And it is not necessary to plead limitations or laches in order to be entitled to the latter defense. (Akey v. Great Western Building LoanAss'n., 110 Mont. 528, 104 P.2d 10; Lewis v. Bowman,113 Mont. 68, 121 P.2d 162.) Even without a pleading of such defense a suit cannot be maintained in a federal equity court of a district nine years after the contract and eight years after demand for performance where the state statute of limitations bars action in five years and where no adequate excuse is offered for the delay. (Moore v. Nickey, 9 Cir., 133 Fed. 289, 66 C.C.A. 667.) A delay of forty-three years, a third of a century beyond the statute of limitations, cannot be otherwise than prejudicial and inequitable; many witnesses who lived in the vicinity and undoubtedly could have testified concerning the conditions in 1892 have, in all human *Page 178 probability, died during that time. Here the contention was good in 1892 or not at all, and the delay in raising it was entirely defendants', entirely unexcused and apparently inexcusable. Immediately upon their challenge of his long established right, plaintiff brought action to quiet his title, presumably to utilize such evidence as might still be available after all these years.
"The plaintiff sought the aid of a court in equity and is bound by the principles applicable to proceedings in equity. It is a familiar maxim that equity aids the vigilant, or, as the same thing is expressed in our Civil Code (section 4618) [now section 8756, Rev. Codes 1935], `the law helps the vigilant, before those who sleep on their own rights.'
"Good faith and reasonable diligence only can call into activity the powers of a court of equity, and, independently of the period fixed by the statute of limitations, stale demands will not be entertained or relief granted to one who has slept upon his rights. Considerations of public policy and the difficulty of doing justice between the parties are sufficient to warrant a court of equity in refusing to institute an investigation where the lapse of time in the assertion of the claim is such as to show inexcusable neglect on the part of the plaintiff, no matter how apparently just his claim may be; * * *." (Kavanaugh v. Flavin, 35 Mont. 133, 88 P. 764, 766.)
"Laches, considered as a bar independent of the statute of limitations, is a concept of equity; it means negligence in the assertion of a right; it is the practical application of the maxim, `Equity aids only the vigilant;' and it exists when there has been unexplained delay of such duration or character as to render the enforcement of the asserted right inequitable." (Riley v. Blacker, 51 Mont. 364, 152 P. 758, 759.)
But assuming that the equity court were in a position to consider defendants' claim at all, it should certainly not exert itself very much to sustain the claim; for the very fact of defendants' failure to make any such contention then or during the next forty-three years, during which severe water shortages have *Page 179 resulted in much litigation, certainly affords very cogent evidence that the slough was then no part of Dempsey Creek.
There can be no doubt that whether one watercourse is a tributary of another is a question of fact. This court has held in Wills v. Morris, 100 Mont. 504, 50 P.2d 858, and inAnderson v. Spear-Morgan Livestock Co., 107 Mont. 18, 79 P.2d 667, that where it was only in time of high water or flood that any water from one stream flowed naturally into another and in the absence of high water or flood it did not reach the confluence of the two streams, the trial court was not justified in finding that the first was a tributary of the second.
As I shall point out below, the record comes far from showing by a preponderance of the evidence that Quinlan Slough is even now a tributary of the creek, but assuming for the moment that it does so show, the record also shows that the conditions were far different in 1892. It shows without dispute that the slough originated principally in seepage from irrigation above, that prior to the adjudication of 1892 there was little water there, and that it was the change in the use of irrigation water resulting from that decree which first brought any considerable flow into the slough. Mike Lowery, one of defendants' witnesses, who lived on the Quinlan ranch at the upper end of the slough for thirty-five years, testified that when he went there in 1890 there was not, in his opinion, enough water in the slough to be used for irrigation; that in 1891 it was practically dry around the house, which was near the slough, but that as a result of the change in use after the 1892 decree, the water kept coming closer until he finally had to move out and build another house half a mile away. He said that there were springs in the slough, but that most of the water was "drop" water from irrigation and that after irrigation stopped there was only fourteen to twenty inches of flow in the slough. Certainly an increase of water necessitating such a removal of the dwelling place must have been accompanied by a relatively considerable increase of flow in the channel.
By a finding of fact, to which the defendants have acquiesced *Page 180 by a failure to object, the trial court found "that there is never to exceed one hundred fifty inches * * * flowing in * * * any part of said slough, during any part of the irrigation season and that there is usually much less than that amount of water flowing in said slough, during all irrigation seasons * * *."
Albert Beck, who was water commissioner in 1938, 1939 and 1940, testified that in the early part of the 1938 season when there was water for everyone the entire flow of the slough dropped to about fifty inches, and in 1939 "to approximately twenty inches, maybe less than that, maybe pretty near dry." He testified at the trial on July 23, 1940, that he thought there was then about twenty-five inches in the slough; this including all the water diverted from it by ditches. Other testimony showed that there was always some water flowing in the slough but not that it flowed from the slough into the creek. On the contrary, the positive testimony is that slough water has never flowed to the creek except in times of high water or flood, or when plaintiff has deposited it there from his slough ditch in order to use the creek as part of his diversion system; that except in times of high water or flood it never ran into the creek until plaintiff's predecessor made a ditch to take it there.
The flow being as little as it still is, and most of it having developed since the 1892 adjudication, it is obvious that even if the slough is a tributary of the creek now it cannot have been one in 1892, and aside from two items, which defendants hardly mention but the majority mainly ground their decision upon, there is absolutely no evidence to the contrary.
These two items contain no element of estoppel or of conclusive evidence. At most they constitute declarations or admissions by plaintiff's predecessors in interest, and they are certainly weakened if not completely nullified by the use subsequently made of the water by plaintiff and his predecessors until 1935 without objection or claim by defendants. But, to give them the full effect argued by the majority, the most they can constitute is some evidence that the slough water was part of the creek in and prior to 1892. *Page 181
The first is the fact that in the water right location certificate filed by plaintiff's predecessor Walker in 1874, the water is spoken of as "waters of Dempsey Creek * * * taken out in a ditch from a certain slough that puts out of said creek on the land now owned by Nicholas Bielenberg purchased by said Bielenberg from the Prouse brothers, said slough puts into saidDempsey Creek at the County Road, * * *."
There are four possible interpretations of the reference to Dempsey Creek. The first is that water in the slough arose principally or entirely from seepage of Dempsey Creek irrigation water. If so, as a matter of law, the water had left the channel of the stream and had by becoming seepage lost its identity as water of the creek. The second interpretation is that it was water of the creek which then came from the creek by the old channel to what in 1890 was the head of the slough. If so, the condition certainly changed long prior to 1892, for the evidence shows without conflict that the slough then arose entirely from seepage in certain land one-quarter to three-quarters of a mile from the creek. The third interpretation is that the water of the slough, if it entered another watercourse at all, would enter Dempsey Creek, which does not mean that the slough was necessarily a tributary of the creek, as held in Wills v.Morris and Anderson v. Spear-Morgan Livestock Co., supra. The fourth interpretation, which is the only one that can help defendants, is that it was intended to indicate that if not diverted from the slough, the water would normally enter the creek; — in other words, that the slough was a tributary of the creek. It is apparent to all the world, as a matter both of law and of fact, that the appropriation was of the water of the slough, which was the watercourse from which it was taken. Under any one of the four possible interpretations, therefore, the reference to Dempsey Creek was just as immaterial and unnecessary to the appropriation as if the reference had been to Deer Lodge River or the Columbia River. Furthermore, the statement constituted a declaration or admission, not of a fact, but merely of a conclusion or opinion of plaintiff's predecessor; it therefore *Page 182 does not constitute an admission against plaintiff. (31 C.J.S., Evidence, p. 1025, sec. 272; Shaver v. Canfield, 21 Cal. App. 2d 734,70 P.2d 507.) Probably that is why defendants choose to rely principally upon the statement that "said sloughputs into said Dempsey Creek," which the majority opinion states "is but another way of saying that it feeds or contributes water to Dempsey Creek." The latter might possibly have that meaning, rather than the more obvious and less limited meaning that there is a connection or channel by which water might perhaps pass from the slough to the creek if there were enough to flow there. At any rate, the expression "puts into" the creek is certainly analogous in meaning to the expression "puts out" of the creek, which is also used in the location certificate. The only explanation of the latter language is that of defendants' witness, Claude Bielenberg, the son of the Nicholas Bielenberg mentioned in the location certificate as the owner of the land on which the diversion was made. This witness had known the vicinity all his life. He testified that there was a channel "or depression and that leads from Dempsey to the head of the slough," but that he could not say that he had ever seen water in it. All the evidence indicates that ever since anything has been known of the vicinity the slough started or "headed" in seepage far from the creek. Obviously, therefore, the expression "puts out of" the creek is not just another way of saying that the creek contributes water to the slough; and conversely the expression "puts into" the creek is not, as the majority opinion states, just another way of saying that the slough contributes water to the creek. Apparently both expressions relate only to the channel or depression from the slough to the creek at both ends. If, however, they and the reference to the water of the creek mean that the creek directly fed the slough in 1872, the record shows without conflict that it was not true in 1892; on the other hand, if they mean that the slough directly fed the creek in 1872, the other evidence shows without question that it was not true in 1892.
The other item stressed by the majority and mentioned by *Page 183 the defendants, is the fact that after the trial, but a few days before the decree was entered in 1892, in a suit filed by Quinlan to enjoin plaintiff's predecessor Herman Johnson from enlarging the slough ditch in Quinlan's field, Johnson in his answer again mentioned the water as being water of Dempsey Creek. It was entirely immaterial to the issues of that case where the water came from. Perhaps Johnson merely followed the language of his predecessor's appropriation notice in spite of the fact that it came from the slough, which all the parties must have known so that they were not misled in any way. But in any event, the reference is subject to the same four possible interpretations as in the location certificate, and in either interpretation it was not only clearly untrue, but constituted at most an immaterial conclusion or opinion rather than a statement of fact.
But giving both of these items all the effect contended for, at best they constitute only a declaration or admission which is rebuttable and not conclusive, and obviously not sufficient to put the trial court in error for finding in accordance with the other evidence, aided by an examination of the premises. It seems to me that, even giving those two items the strong evidentiary effect contended for, they cannot be regarded as furnishing such a preponderance of the evidence as is necessary to reverse the trial court's decree and thus destroy a water right of seventy-two years standing.
I think the evidence clearly indicates that originally the slough existed in a slight depression or fold of the surface which sometime, whether entirely temporarily or of more long standing, may have been a high-water channel of the creek and trending toward it at each end; that as a stream of water since the settlement of Montana in the 1860's it either originated entirely by seepage from irrigation water, or contained a negligible volume from springs until irrigation began about April, 1865; that at first it was only a wet or swampy place entirely isolated from the creek in both directions, and that in addition to water lost by seepage or evaporation, it was not of sufficient volume to overcome the high places in the old channel so as to flow normally *Page 184 to the creek; that it increased in flow until 1872, when Walker made his appropriation, and perhaps thereafter, and that in 1892 it still contained too little water to make it flow normally into the creek as a tributary; that it was only after the adjudication of 1892, and because of the changes in irrigation resulting from that adjudication, that it furnished very much continuous volume of water for irrigation, or could have contributed normally to the creek so as to make it a tributary; that not until 1935 was it even claimed by the defendants or their predecessors to be a tributary of Dempsey Creek.
There is some evidence that it has since 1892 become a tributary, although that evidence is almost entirely inferential or argumentative and certainly does not constitute a preponderance of the evidence. The strongest evidence to that effect is that the plaintiff now diverts the water from the slough at a point only a short distance above the confluence of the two channels; but opposed to that is the accepted court finding noted above that there is never to exceed one hundred fifty inches flowing in any part of the slough during any part of the irrigating season, and that there is usually much less. Certainly there is no force in the argument that one hundred fifty inches must have continued flowing, in spite of seepage and evaporation, sufficiently to reach the creek; for it is only at extreme high water that there is ever such a volume and there is usually much less. There is no contention, of course, that twenty or twenty-five or even fifty inches would normally have reached the creek, especially after the heavy flood run-off has ended and evaporation and seepage are high.
Most of the evidence relied upon to show that the slough has become a tributary, even since 1892, is that the slough and the creek "joined" or "connected" or "came together" or had their "confluence" below the road until they were combined above the road by the county crew about 1910. Numerous witnesses testified to seeing water in the channels, or one of them, at the road, but not one witness testified that water ever flowed normally from the slough to the creek except in high water or flood, *Page 185 or when placed there by plaintiff's ditch. One example was Ben Goldie, road supervisor in 1906 when the bridges over the two channels were rebuilt. The majority opinion quotes him as saying that "water was flowing in the streams." However his final testimony on that point was that there was water running under the Dempsey Creek bridge but that he was not positive whether water was running under the slough bridge or not.
The only other evidence is to the effect that unless diverted the water of the slough would run into the creek; — that there was nowhere else for it to go. The latter manifestly means no more than that there is no other channel for it to run through, and that it will therefore flow into the creek if the seepage and evaporation are little enough and if the volume of water is sufficient, and if it continues to flow on the surface of the ground as a stream of water. Obviously that alone is insufficient to constitute the slough a tributary of the creek, under the above authorities.
It may be that such evidence, while certainly flimsy, would have been sufficient to sustain a finding, if made, that the slough has since 1892 become a tributary of the creek, but it is certainly not sufficient to reverse the contrary finding, which was actually made and is not presumed to be error; and not by any stretch of the imagination can it be considered sufficient to prove that the slough was a tributary of the creek in or prior to 1892.
In any event, the meaning of the two expressions "puts out of" and "puts into" and of the witnesses' reference to the joining, connecting, coming together, or confluence of the slough and the creek, and of other testimony relevant to the question whether the slough was or is a tributary, were for the trial judge to determine. It is worthy of note that in making that determination he had the advantage of going upon the ground and making a personal inspection. Obviously he was better situated to understand the testimony of witnesses than are members of this court, and we cannot presume error in that respect. "A view of the premises made by the trial judge must be presumed as equivalent to an examination by a jury. Whenever a jury *Page 186 has viewed premises for a better understanding of the testimony of witnesses, the determination of the fact in issue, when supported by some evidence, as here, will not be disturbed on appeal." (Nemitz v. Reckards, 98 Mont. 229, 38 P.2d 980,985.)
In Ryan v. Quinlan, 45 Mont. 521, 124 P. 512, the defendants' contentions were surprisingly like those of the defendants here, which are therefore not new. The parties to that suit had been parties to another adjudication of the waters of Dempsey Creek made in 1902. In that suit no reference was made to Blind or Ryan Lake, which was on higher ground two-thirds of a mile from Dempsey Creek, with a small flow of water over its rim, estimated at fifteen to forty inches, which gradually decreased until it entirely disappeared less than half way to the creek; from that point there was no channel to the creek. Not having established a water right in the 1902 adjudication, Ryan conceived the idea of raising the lake level four feet by a dam, conveying the water to Dempsey Creek by ditch and flume, and taking the water from the creek below for the irrigation of his land. Having been adjudged in contempt as in violation of the 1902 decree, Ryan brought action to adjudicate his right, and appealed from adverse findings and decree in which the trial court found that the normal flow of the lake, when not obstructed by Ryan's dam, reached the creek by underground seepage and percolation and became part of the creek.
In the decision, which was written by Mr. Chief Justice Brantly, this court said, with reference to the 1902 adjudication: "As heretofore stated, the question as to whether the lake is tributary to the creek was not directly involved in the action. The parties were not aware of its existence except by hearsay. Whether, therefore, the plaintiff is estopped by the decree to assert his present claim, depends upon the facts as they actually exist, and not upon a mere construction of it implied by the judgments in the contempt proceedings. * * * If in fact the lake is not tributary to the creek, the existence of the decree does not make it so, * * *. Of course, if the lake is tributary to *Page 187 the creek, the decree of 1902 concludes plaintiff from asserting a right to appropriate the overflow.
"The contention of plaintiff, therefore, presents the question: Does the evidence sustain the ultimate finding that the lake is tributary to the creek? The burden was necessarily upon the plaintiff to establish his right to intercept and appropriate the natural overflow from the lake, for if this overflow, however small in volume, reaches the creek by reasonably ascertainable channels, it is one of its sources of supply.
"The evidence introduced by plaintiff tended to show that there is a complete disappearance of it at a point 1,500 feet distant from the lake, and that beyond that point there is no surface channel, nor any indication upon the surface of an underground way or channel in the direction of the creek. Primafacie, therefore, it was thus made to appear that the overflow does not find its way into the creek. The lake being upon the public domain, the plaintiff was * * * prima facie entitled to make use of it and to intercept the overflow as he did, provided that in doing so he did not interfere with the use by defendants of the natural flow in the creek. The burden was then cast upon the defendants to show that, if uninterrupted, the flow finds its way into the creek by a defined channel either upon the surface or underground, and that plaintiff's appropriation of it diminishes the volume of water flowing in the creek. This they undertook to establish by showing the character of the debris filling the canyon, and the configuration of the adjacent country. It does not appear, however, from the statement of any witness, that there is any natural surface channel beyond the point of disappearance. While it does appear that the debris in the canyon is perhaps pervious to water, there was not any attempt to show that this is the fact nor that the vegetation on the surface prior to plaintiff's diversion indicated a defined watercourse beneath, nor that there is any sound of running water, nor that there are springs bursting out in the channel below at the mouth of the canyon, nor that the flow of the creek is increased in volume by accession from the lake where it passes *Page 188 the canyon. Nor was it shown whether the creek is upon bedrock, or whether it runs over an impervious filling of the canyon upon which its bed lies. Neither was it made to appear that the formation of the surrounding elevations is impervious to water so that the overflow from the lake must of necessity seek an outlet through the canyon. Indeed, the evidence introduced by the defendants has not sufficient probative force to present a substantial conflict upon the prima facie case made by the plaintiff. It is remarkable for what it fails to show, rather than what it does show. The court was evidently of the opinion that since the direction of the flow, so far as it is visible to the eye, is toward the creek, and since the slopes of the surrounding elevations all converge toward the creek, it was impelled to the conclusion stated in the findings. A moment's reflection, however, is sufficient to satisfy a reasonable mind that the evidence furnishes no substantial ground for the inference. When water seeps into the earth, it mingles with the soil and remains suspended therein, or moves through it either by percolation, thus losing its identity as a flowing stream, or passes away by one or more defined channels.
"It has been settled by a long line of decisions that percolating water is not governed by the same rules that are applied to running streams. * * * The rule, though variously stated, is recognized by the courts both of England and in this country. * * * The result of it is that the proprietor of the soil, where such water is found, has the right to control and use it as he pleases for the purpose of improving his own land, though his use or control may incidentally injure an adjoining proprietor. * * *
"Subsurface water flowing in defined channels reasonably ascertainable is subject to the same rules as water flowing in surface streams; but there is no presumption that any subsurface water, in whatever form it may be found, is tributary to any stream. (Citing cases.) The burden is upon him who asserts this to be a fact. We think that it may be established by circumstantial evidence, * * * but the evidence must have so much of *Page 189 substance and probative value as will reasonably exclude the contrary hypothesis. This court recognized this rule in Leonard v. Shatzer, 11 Mont. 422, 28 P. 457, and in Hilger v.Sieben, 38 Mont. 93, 98 P. 881. * * * It does not appear that the lake water reaches the creek by any means."
That case strikingly resembles this, in the defendants' contention that plaintiff was concluded by a decree which did not deal expressly with the water source in question and was not at the time understood as doing so. However, it differs from this in that the attack was directed against a subsequent appropriation and not, as here, against an appropriation made and used twenty years before the decree, and used without objection during the litigation and for forty-three years thereafter. Furthermore, that attack was made immediately after the decree and the subsequent diversion, and not, as here, sixty-three years after the appropriation and forty-three years after the decree. Another difference is that in Ryan v. Quinlan the defendants' contention was that the lake was tributary to the creek by underground rather than by surface flow.
In the instant case, not only does it not appear positively and without substantial controversy that the slough water has ever reached, or would but for the diversions reach, the creek by any natural means, except in time of high water or flood (which under the above authorities is not sufficient to constitute the slough a tributary), but it affirmatively appears that it was only after the adjudication relied upon to bar plaintiff's right, that the flow in the slough increased to anything like the present amount, and that it was not until forty-three years later that it was even claimed by defendants as part of the creek.
In this state of the law and the record, it is manifest, not only that there is no lack of substantial evidence supporting the basic finding that the slough was not at the adjudication of Cause No. 404 a tributary of the creek, but that the evidence preponderates strongly in favor of that finding. The same is true as to the court's broader finding (which necessarily includes the basic one) that the slough "is not now and never has been," *Page 190 a tributary of the creek, which in its broader form is not strictly essential to the decree.
If, nevertheless, the majority of the court find from the preponderance of the evidence that the slough has at some time become a tributary of the creek, they can certainly not find from the preponderance that it clearly became such before the 1892 adjudication. Under those circumstances it seems to me that they can properly do nothing but affirm the decree. Certainly the most they could properly or equitably do would be to remand the cause for further and more satisfactory evidence upon the point, if available, rather than to destroy this water right of seventy-years standing, upon such a record. Certainly, in view of the defendants' failure to object during the continuous use of the slough water right during, and for twenty years before and forty-three years after, the adjudication of 1892, as a matter both of evidence and equity, and in view of all the other evidence, it cannot justifiably be held that the record preponderates toward the conclusion that the slough was a tributary of the creek in 1892, and that plaintiff's predecessor therefore relinquished a water right which he was then and thereafter actively and continuously using. It is a monstrous thing to destroy such a well established property interest upon such a record, and in my opinion the trial court would have committed gross error in deciding the case otherwise than as it did.