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eBook details

• Title: Havre Irrig. Co. v. Majerus
• Author : Supreme Court of Montana
• Release Date : January 05, 1957
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 60 KB

Description

WATERS AND WATER COURSES ? APPEAL AND ERROR ? ADVERSE POSSESSION. 1. Appeal and Error ? Presumption in equity appeal. In entering upon a review of an equity case, Supreme Court indulges in presumption that judgment of trial court is correct and will draw every legitimate inference therefrom to support presumption. 2. Appeal and Error ? Office of trial court in equity case. It is trial courts office in equity case to resolve inconsistencies in testimony, and where the evidence fully considered, furnishes reasonable grounds for different conclusions, findings of trial court will not be disturbed. 3. Waters and Water Courses ? Adverse possession ? Burden of proof. One claiming water rights by virtue of adverse possession has burden of proving every element of the claim. - Page 411 4. Waters and Water Courses ? Proof of adverse possession. In order to acquire water right by adverse user or prescription, it is essential that proof establishes exclusive, open and continuous use for statutory period of ten years under claim of right, and a use which is hostile to and which constitutes an invasion of anothers rights which he has a chance to prevent. 5. Waters and Water Courses ? Use of water must be adverse. To establish adverse user, it must be shown that claimant used water at a time when plaintiff had need of it, that he used it in such a substantial manner as to notify plaintiff that he was being deprived of water to which he was entitled, and that during all of that period, plaintiff could have maintained an action against claimant for so using water. 6. Waters and Water Courses ? Evidence sustained findings. In action by irrigation company to establish its prior right to certain amount of water from creek and to enjoin upstream defendants from interfering therewith, evidence sustained finding that actions of upstream defendants in using creek waters for limited irrigation purposes did not, under combination of circumstances, come to attention of irrigation company until year of abnormal rainfall, rendering defendants use insufficient to acquire water rights by adverse possession.

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