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of the law. With much greater reason, we think, should the contract under consideration be held vicious. We cannot sanction them. On account of their corrupting tendency we must hold them to be void, as inconsistent with public policy": Gillett v. Board of Supervisors, 67 Ill. 256. See, also, Patterson v. Donner, 48 Cal. 369.
We fully concur in the views expressed in these cases, and we are of opinion that the contract under consideration falls within the objectionable class. To be sure, under the contract the plaintiff, Quirk, may have performed only innocent acts, and there is nothing to indicate that both his intentions in making the contract and his acts in carrying it out were other than wholly innocent and lawful. But the contract was just such an one as to encourage an unlawful act. It invited subornation of perjury. It held out a large reward for success. The amount claimed by plaintiff was some $1,800. The obtaining of this large sum depended upon plaintiff procuring testimony which would win the lawsuit. The law does not tolerate the offering to any one, no matter how virtuous, of such temptations to crime. The evils and vices of such a contract are strongly stated in the language of the Illinois court, quoted above. It would, indeed, be a sad spectacle to see springing up in this state the business of procuring testimony sufficient to win lawsuits. We regretfully express the fear that perhaps such a business might find a patronage. But from such a result we will secure ourselves by declaring void a contract the manifest tendency of which is to present the direct temptation and the great inducement to one to procure subornation of perjury. There is here too close an approach to the evil maxim, sometimes quoted: “Get money; honestly, if you can; but get money." contractor in plaintiff's position could only too easily be led to say to his conscience: “I will procure the necessary testimony; honestly, if I can; but I 475 will procure the testimony.” The evils of such contracts are illustrated in the very case for which this plaintiff contracted to procure the testimony which would succeed in winning a judgment for plaintiff therein. That case was before us on appeal, and is reported in Muller v. Buyck, 12 Mont. 354. In our investigation it appeared that practically the only witness for the plaintiff was herself. It seems that the case rested solely upon the testimony of plaintiff, Muller, and the defendant, Buyck. So, if it be true that plaintiff herein, Quirk, pro
cured the testimony which won the judgment in Muller v. Buyck, he procured the plaintiff herself to testify, and the only construction of the situation by which it could be claimed that he procured any testimony would be that he procured or instructed her to testify as she did, because it was her testimony that won the case. It does not appear, on an inspection of the decision in that case, that plaintiff herein did or could have rendered service of such nature, or any other. We speak of this as an illustration of the evil tendency of such a contract as is pleaded in the complaint in this case.
We think that nothing here said can be interpreted as forbidding the offering of rewards for the detection of crime, or the employing of persons to search for material witnesses or important papers or documents or exhibits which have been lost. We think that no difficulty will arise in sustaining contracts for the performance of legitimate services, while the stamp of disapproval is put upon contracts clearly contra bonos mores.
The judgment is reversed, and the case is remanded, with directions to dismiss the complaint.
PEMBERTON, C. J., and HARWOOD, J., concur.
CONTRACTS TO PROCURE EVIDENCE. -VALIDITY OF: See the extended note to Cobb v. Cowdery, 94 Am. Dec. 375–378; also Goodrich v. T'enney, 144 IIL 422; 36 Am. St. Rep. 459.
KLEINSCHMIDT V. GREISER
(14 MONTANA, 484. ] EQUITY_JURY TRIAL.—THE VERDICT OF A JURY IS NOT CONCLUSIVX upon a
court in an equity case by virtue of section 250 of the Code of Civil Pro cedure of Montana. It will not be presumed from any devious and uncertain language that the legislature undertook to prune away one of the most distinctive and important jurisdictional functions of the
equity courts. WATERS. -ABANDONMENT OF AN APPROPRIATION OF WATER DOES NOT
RESULT FROM A CHANGE IN THE MODE OF Diversion and the abandon. ment of the ditches by which the diversion was first made and the use
of others in place thereof. WATERS.-AN APPROPRIATION OF WATER CANNOT BE Cut Down to the
quantity necessary to irrigate the lands which the appropriator had in cultivation at the time when a subsequent appropriation was made or attempted, if the first appropriator had other lands suitable for irriga. tion which he had not yet subdued to the plow.
Shober & Rasch, for the appellants.
498 Per CURIAM. The purpose of this action is to adjudi. cate and determine a controversy between plaintiffs and defendants regarding their priority of right, by appropriation, to use the waters of Prickly Pear creek and its tributary, Cañon creek, situate in Lewis and Clarke county, for irriga. tion of agricultural lands adjacent thereto.
Plaintiffs allege appropriation about November 11, 1882, of four thousand inches of water from Cañon creek, a tributary of Prickly Pear creek, diverted by means of a dam and ditch, whereby that quantity of said water is conveyed to the lands of divers persons, who own said dam and ditch in common; that such appropriation on the part of plaintiffs is prior to defendants' appropriation of the waters of said creek; that defendants have wrongfully interfered with and removed said dam, thereby preventing plaintiffs' diversion of the waters from said creek, and threaten to continue 80 to do, thus depriving plaintiffs of the use and enjoyment of their alleged prior right to the use of said waters. Wherefore they seek judgment establishing their alleged right as prior to that of defendants, 494 with permanent injunction forbidding defendants' interference therewith.
Defendants, by answer, allege appropriation and diversion of diverse quantities of the waters of Prickly Pear creek by them, respectively, or their predecessors, aggregating nineteen hundred inches, according to statutory measurement, all of which appropriations on the part of defendants are alleged as of dates several years prior to the appropriation by plaintiffs. Defendants also allege that their several appropriations were and are necessary for the irrigation of the agricultural lands owced by them, respectively. The jury sitting in the trial appear to have returned findings satisfactory to defendants, awarding them, severally, about the amount of water claimed prior to plaintiffs' appropriation; but the court modified the findings of the jury, and supplemented the same by some further findings, whereby the quantity of water found by the jury to have been appropriated by defendants, prior to the appropriation by plaintiffs, was diminished to three hundred and twenty inches, distributed anong them as follows: Greiser, sixty inches by appropriation of 1871; Leedy, forty inches by appropriation
of 1871, and forty inches by appropriation in 1868; Kenck, Duffy, and Coppler, jointly, one hundred and eighty inches by appropriation March 1, 1882. Following those appropriations, in order of time, the court found plaintiffs appropriated seventeen hundred and sixty inches of water of said creek, necessary for their use in the irrigation of their agricultural lands. There were some further appropriations found in favor of defendants, but of dates subsequent to the appropriation by plaintiffs. Decree was entered accordingly. Defendants appeal, insisting that the court erred in several points specified, all of which have been carefully considered in the light of the record.
The first proposition urged by appellants is that, notwithstanding this case is properly classified as in the nature of an action in equity, the court is bound, by virtue of the peculiar provision of section 250 of the Code of Civil Procedure, to make its decree in conformity with the verdict of the jury. This proposition has been several times argued to this court, and given due consideration, resulting on each occasion in the 495 conclusion, remarked in Arnold v. Sinclair, 12 Mont. 248, that it will not be presumed, from any devious or uncertain language, that the legislature undertook to prune away one of the most distinctive and important jurisdictional functions of the equity court; and, when a statute is found clearly expressing that intention, it will be time enough to inquire as to whether the legislature possessed power to that end.
Passing to a consideration of the points of error specified in relation to the findings of fact, we find that the record, which purports to contain a transcript of all the evidence introduced, does not disclose evidence sufficient to support the finding by the court that defendant Greiser abandoned, in the year 1877, all but sixty inches of his original appropriation of the waters of said creek. According to the evidence shown by the record defendant Greiser constantly used the waters appropriated for his ranch, but from time to time di. verted the same through different ditches, and in 1877 he abandoned an older ditch formerly used for the same purpose.
This does not constitute abandonment of his water right, or any part thereof, nor does any evidence in the record support such finding. Nor is there evidence in the record sufficient to warrant the finding by the court to the effect that defendants Duffy and Coppler did not acquire
an interest in the Tierney ditch until May, 1885. The undisputed evidence, as disclosed by the record, shows that they acquired an interest in said Tierney ditch in June, 1882, and that testimony is corroborated by the joint notice of appropriation of the waters of said creek by Tierney, Duffy, and Coppler, introduced in evidence, which bears date May 25, 1882, and declares their appropriation as of that date. Nor is there evidence in the record sufficient to warrant the find. ing that, after Duffy and Coppler acquired interests in said Tierney ditch, they enlarged the same to a capacity sufficient to divert the water by them appropriated. The testimony of witnesses on this point is emphatically to the contrary effect, except that of witness Ford, who, under contract, for the owners, continued the excavation of said ditch after Duffy and Coppler acquired interests therein. In his testimony he describes his work upon said ditch, and says that he ens larged or widened the excavation of a portion of the ditch, where the work of 496 Tierney in the excavation thereof was left off; that Tierney directed Ford to widen the ditch in that part, explaining that the last of his excavation was done in the winter, and was not made of sufficient width at that part. But Ford distinctly testifies that it was only the portion of the excavation toward the end, where Tierney left off, that he enlarged. His testimony, under such explanation, becomes consistent with that of other witnesses on this point, all of which is insufficient to support the finding that the part of said ditch already excavated by Tierney was enlarged after Duffy and Coppler acquired interests therein. The effect of the finding by the court on this point would place the appropriation of Duffy and Coppler as of May, 1883, subsequent to that of plaintiffs.
There is another finding by the court to the effect that only a portion of certain ranches owned by defendants was avail. able for irrigation, and apparently upon that theory the quan. tity of water allotted to them by the findings of the court was very considerably diminished from the amount appropriated and diverted through their ditches, and claimed to be necessary to irrigate their lands. It is always proper to inquire into the question of the necessity and ability to use the quantity of water appropriated and diverted. If it should appear from proper evidence that a portion of defendants' lands is so situate that the water claimed by such defend. ants could not be diverted thereto, or that the land is of such