(DOWNLOAD) "Zosel v. Kohrs Et Al." by Supreme Court of Montana ~ eBook PDF Kindle ePub Free
eBook details
- Title: Zosel v. Kohrs Et Al.
- Author : Supreme Court of Montana
- Release Date : January 23, 1925
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 62 KB
Description
Waters and Water Rights ? Acquisition by Prescription ? Adverse User ? Parties Bound by Decree Until Modified. Water Rights ? Acquisition by Prescription. 1. A water right may be acquired by prescription. Same ? Adjudicated Rights ? Alleged Adverse User by Party to Prior Action ? Notice to Other Parties in Complaint ? Insufficiency. 2. Defendants in an action to establish a water right by adverse user in a stream the waters of which had in a prior action been adjudicated between the parties were warranted in assuming that plaintiff (the successor of one of such parties) took the water in conformity with the decretal provisions and not in defiance thereof, until expressly notified that plaintiff repudiated the decree and intended thereafter to take the water in hostility of their rights; hence failure to allege that each of the defendants had been so notified at the time the alleged adverse right was initiated rendered the complaint insufficient. Same ? What Does not Constitute Adverse User. 3. The use of water by a subsequent appropriator is not adverse to the right of a prior appropriator unless such use deprives the latter of it when he has actual need of it. Same ? Adverse User ? How Initiated. 4. An adverse use of the waters of a stream can be initiated only by taking that which by priority belongs to another when the water becomes so scarce that all of the parties cannot be supplied. Same. 5. An adverse user of water cannot be initiated until the owner of the superior right is deprived of its use in such a substantial manner as to notify him that his right is being invaded, and to entitle plaintiff in an action to establish a water right by adverse user he must show that during the entire statutory period his invasion of the defendants right was such as to give him a cause of action against plaintiff. Pleading ? Pleader Bound by Special Allegations Germane to General Averments. 6. Where a pleader supplements his general allegations by pleading facts relative or germane thereto which weaken or destroy the former, he is bound by the latter. Water Rights ? Parties Bound by Decree Until Modified. 7. Until a decree in a water right suit is modified, the parties thereto are bound by it; hence where a creek had been adjudged - Page 565 a tributary of another stream, one of the parties was precluded from alleging in his complaint in an action to establish a water right by prescription that the waters in the creek, if not taken by him, would sink and be lost during a certain part of the year before reaching the stream and therefore during that time were not tributary to the stream, and evidence in support of the allegation would be inadmissible.
 "Zosel v. Kohrs Et Al." by Supreme Court of Montana ~ eBook PDF Kindle ePub Free){kind=link}