Smith v. Duff
Montana Supreme Court
Appeal from District Court, Broadwater County; W. B. C. Stewart, Judge. Action by Joseph B. Smith and another against A. T. Duff and others; from a judgment determining water rights, defendants James Kitto and David F. Williams appeal. The question as to whether or not Kitto and Williams had acquired title by adverse user to the water claimed by them was an issue of fact by the pleadings and under the proof, and the court should have made a finding thereon.
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Appeal from District Court, Broadwater County; W. B. C. Stewart, Judge. Action by Joseph B. Smith and another against A. T. Duff and others; from a judgment determining water rights, defendants James Kitto and David F. Williams appeal. The question as to whether or not Kitto and Williams had acquired title by adverse user to the water claimed by them was an issue of fact by the pleadings and under the proof, and the court should have made a finding thereon. (Estill v. Irvine, 10 Mont. 512, 26 Pae. 1005; Quinlan v. Calvert, 31 Mont. 115, 77 Pac. 428.) The failure to make findings on material…
1Opinion of the Court
HONORABLE LLEWELLYN L. CALLAWAY
Judge of the Fifth Judicial District, sitting in place of MR. JUSTICE-SMITH, delivered the opinion of the court.
An extended statement of the case will not be useful. Suffice it to say that, while the district court of Broadwater county was trying the cause which seems to have involved all the waters of Crow creek, the appellants seasonably requested the court to find them to be the owners of the right to use the waters claimed by them by adverse user, rather than by appropriation. The court refused to make any finding on the subject of adverse user. It gave…
2Cases cited14 opinions
- Bullerdick v. HermsmeyerMontana Supreme Court · 1905
- Wimer v. SimmonsOregon Supreme Court · 1895
- Chessman v. HaleMontana Supreme Court · 1905
- Gardner v. WrightOregon Supreme Court · 1907
- North Powder Milling Co. v. CoughanourOregon Supreme Court · 1898
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3Cited by33 opinions
- Ferguson v. StandleyMontana Supreme Court · 1931
- Tucker v. Missoula Light & Railway Co.Montana Supreme Court · 1926
- St. Onge v. BlakelyMontana Supreme Court · 1926
- Bounds v. CarnerNew Mexico Supreme Court · 1949
- Enterprise Irrigation District v. Tri-State Land Co.Nebraska Supreme Court · 1912
28 more not listed; retrieve them via the Exa API.