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eBook details

• Title: State Ex Rel. Reeder v. District Court Et Al.
• Author : Supreme Court of Montana
• Release Date : January 09, 1935
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 66 KB

Description

Certiorari ? Contempt ? Water Rights ? Nature of Water Right ? Property Right not Determinable in Contempt Proceeding ? Parties and Successors in Interest ? Who not Bound by Water Right Decree ? Water Commissioner ? Powers. Waters and Water Rights ? Use of Water in Streams Public Use ? Constitution. 1. Under section 15, Article III, Constitution, the use of water in streams is a public use, and every citizen is entitled to divert and use it so long as he does not infringe upon the rights of others who have acquired a prior right by appropriation. Water Rights ? Suit to Quiet Rights in Nature of One to Quiet Title ? Property Right may not be Adjudicated in Contempt Proceeding. 2. An action to ascertain, determine and decree the extent and priority of the right to the use of water partakes of the nature of a suit to quiet title to real estate; it involves a substantive property right which cannot be adjudicated through the medium of contempt proceedings. - Page 377 Same ? Water Right Decree not Binding upon Whom. 3. A decree in a water right suit does not bind persons not parties nor privies to parties to the suit, and not connected with the litigation or with the parties thereto. Same ? Contempt ? One not Party to Original Water Right Suit nor Successor in Interest of Party not Guilty of Contempt ? Certiorari. 4. Held, on certiorari, that where, after adjudication of the water rights in a stream, a land owner who was neither a party to the suit in which the adjudication was had nor a successor of a party thereto but who claimed a right under an appropriation the legality of which had not as yet been the subject of litigation, tapped the stream and upon being advised by the water commissioner that all the water in the stream was insufficient to supply the needs of those decreed entitled thereto, replied that he would, and did, continue in its use, a finding that he was guilty of contempt was not, under the above rules, warranted in the absence of a showing that he interfered with the water commissioner in the performance of his duties. Water Commissioner ? Extent of Powers. 5. A water commissioner appointed under the provisions of sections 7136 et seq., Revised Codes 1921, whose principal duty it is to admeasure water according to the rights fixed by court decree, does not possess complete and exclusive jurisdiction to control the stream, regardless of whether all rights are adjudicated thereby; nor may the district court in a contempt proceeding, summary in its nature, decide that the contemnor, claiming a right in a stream otherwise adjudicated, has no right; this may only be done by an appropriate action after due notice and hearing.

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