Stafford v. Hornbuckle
Montana Supreme Court
Appeal from, Third District, Meagher Ooimty. Plaintiff, by the decree in case of Gallagher et al. v. Basey et al., was only entitled to 35 inches of water at any point above the head of the ditch — any other construction would render the decree void for uncertainty. A decree can only declare facts put in issue by pleadings. Stewart v. F. & M. Bant, 19 Johns. 505. There was no separate claim by Stafford.
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Appeal from, Third District, Meagher Ooimty. Plaintiff, by the decree in case of Gallagher et al. v. Basey et al., was only entitled to 35 inches of water at any point above the head of the ditch — any other construction would render the decree void for uncertainty. A decree can only declare facts put in issue by pleadings. Stewart v. F. & M. Bant, 19 Johns. 505. There was no separate claim by Stafford. Wharton on Ev. 838; Bliss v. Nichols, 12 Allen, 443 ; Cook v. Bcurr, 44 N. T. 156. It was competent to show what was said by Stafford at the time he conveyed his interest. Mi/ng v. Woolf oik,…
1Opinion of the CourtWade, C. J.
On the 11th day of July, 1871, in an action pending in the district court of Meagher county wherein these defendants and another were plaintiffs, and this plaintiff and others were defendants, the plaintiff herein was adjudged entitled to the use and enjoyment of certain waters of a stream in said county known as Avalanche creek. [1 Mon. 457, Gallagher et al. v. Basey et al., and id. 20 Wall. 670] and the complaint herein charges a wrongful diversion of said waters by the defendants, to the injury and damage of the plaintiff, and prays for an injunction and a judgment for the damages so…
2Cases cited2 opinions
- Basey v. GallagherSupreme Court of the United States · 1875
- Hastings v. JacksonCalifornia Supreme Court · 1873
3Cited by2 opinions
- Scott v. Jardine Gold Mining & Milling Co.Montana Supreme Court · 1927
- Hicks v. Stillwater CountyMontana Supreme Court · 1929