State Ex Rel. Crowley v. District Court
88 P.2d 23, 108 Mont. 89, 121 A.L.R. 1031 (1939)
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Rule of Law:
A prior appropriator's water right includes the right to a reasonably efficient means of diversion, and a subsequent appropriator is liable for damages if they interfere with that means by altering the stream level, even if the prior appropriator's quantum of water remains in the stream.
Facts:
- John Crowley and his predecessors held a right, appropriated in 1885, to 200 inches of water from the Madison River for irrigation.
- Crowley utilized a wing dam made of brush, rocks, and dirt, which he alleged was a reasonably adequate and efficient means of diverting water into his ditches.
- The Montana Power Company and its vice-president, M. E. Buck, controlled and operated the Hebgen and Madison River Dams upstream from Crowley's point of diversion.
- During the irrigation seasons of 1935, 1936, and 1937, Montana Power impounded the entire natural flow of the river with its dams.
- This action by Montana Power lowered the water level at Crowley's diversion point so significantly that his existing wing dam could no longer divert water into his irrigation ditches.
- While Crowley's allotted 200 inches of water may have been present in the river, it was at a level too low to be captured without the expenditure of large sums of money for a new diversion system, such as a pumping plant.
Procedural Posture:
- John Crowley filed suit against Montana Power Company and M. E. Buck in the district court of the sixth judicial district for Gallatin County.
- Crowley's amended complaint contained nine causes of action, including causes 2, 5, and 8, which alleged interference with his reasonably adequate diversion system.
- The defendants filed general demurrers to causes of action 2, 5, and 8, arguing they failed to state a valid claim.
- The district court sustained the defendants' demurrers, effectively dismissing those three causes of action.
- Crowley then filed an application with the Montana Supreme Court for a writ of supervisory control to compel the district court to reverse its order sustaining the demurrers.
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Issue:
Does a subsequent water appropriator who lowers the water level of a stream, thereby rendering a prior appropriator's reasonably efficient diversion system ineffective, become liable for damages, even if the quantity of water to which the prior appropriator is entitled remains in the stream?
Opinions:
Majority - Mr. Chief Justice Johnson
Yes. A subsequent appropriator is liable for damages for rendering a prior appropriator's reasonably efficient diversion system useless by lowering the stream's water level. A water right is not merely a right to a quantity of water left in the stream bed, but the right to divert and beneficially use that water. Subsequent appropriators take with notice of existing conditions, which includes not only the quantity of prior appropriations but also the reasonably efficient means by which they are diverted. The court distinguished this case from Schodde v. Twin Falls Land & Water Co., where the diversion method (water wheels powered by the current) was deemed inherently unreasonable and inefficient because it monopolized the entire flow of the river to divert a small amount of water. Here, Crowley alleged his wing dam was a reasonably adequate and efficient means of diversion, which is a question of fact sufficient to state a cause of action. The cost of changes necessary to preserve the senior right must be borne by the subsequent appropriator who caused the interference.
Dissenting - Mr. Justice Morris
This opinion does not address the substantive issue. The dissent argues that the court should not have granted the writ of supervisory control. This writ is an extraordinary remedy intended only for emergencies where an appeal after final judgment would be an inadequate remedy. The dissent contends that this case does not present such a gross injustice or emergency, and that the plaintiff's rights could be fully protected through the normal process of trial and subsequent appeal, making the majority's intervention an overly liberal use of the court's supervisory power.
Analysis:
This decision is significant for establishing that a water right in an appropriation-doctrine state protects not just the quantity of water but also the appropriator's reasonable means of diversion. It protects senior, often smaller-scale, water users from being effectively displaced by junior, large-scale users who can drastically alter stream flows. The ruling clarifies that the burden is on the subsequent appropriator to ensure their actions do not impair the existing, reasonably efficient diversion systems of senior rights holders. This precedent strengthens the position of senior appropriators and places a higher duty of care on new water development projects to account for existing infrastructure.
