38 



conveyed about 100 miner' ,s inches of water to land through two ditches 

 dug to tap the waters of Middle Creek. In the years 1864 to 1869, 

 inclusive, additional tracts of land were preempted, or homcsteaded, 

 bv new settlers, each of whom either constructed his own ditch from 

 Middle Creek or ac lired an interest in his neighbor's ditch. These 

 first settlers, to the number of thirteen, diverted streams at various 

 points along the lower 9 miles of this creek and were subsequently 

 known in the litigation which ensued as the Lower Middle Creek 

 appropriators. 



Lands had been acquired prior to 1870 in the vicinity of the upper 

 part of Middle Creek, but no diversions had ))een made from this 

 section of the stream. This delay is readily accounted for. The best 

 agricultural lands were situated 1 or more miles from the (;hannel of 

 the stream; the cost of building ditches, owing to the high banks and 

 the long distances, would be considerable, and, lastly, the lower irriga- 

 tors, having acquired prior rights to the waters of the same "stream, 

 might contest the water rights of the upper settlers. To overcome 

 the physical difficulties in the way of obtaining water for their land, 

 and to procure greater financial strength in the prospective litigation 

 with the lower Middle Creek irrigators, the settlers on the upper part 

 of the stream formed themselves into an association, called the Upper 

 Middle Creek Company. This was the lirst cooperative effort on the 

 part of Middle Creek water users. 



For the purpose of avoiding a conflict, this association began to 

 negotiate with the farmers on the lower part of the stream. This 

 resulted in the fall of 1871 in a contract which provided for an 

 exchange of Avater. The Upper Middle Creek Company conceded to 

 the lower users their prior rights to the waters of the creek, to the 

 extent of the capacities of their several ditches, and agreed to construct 

 and maintain a canal to convey water from the West Gallatin River 

 to the channel of Middle Creek above the head gates of the lower 

 users in quantities to equal if not to exceed the aggregate capacity of 

 the lower ditches. The upper irrigators reasoned that if their associa- 

 tion was willing to bear all the expenses in conveying water from a 

 source which had an abundant surplus to the channel of Middle Creek 

 they would then be entitled to divert from Middle Creek at higher 

 points a volume of water equal to that which was to be conveyed 

 from the West Gallatin River. 



Several stipulations were inserted in this contract to protect the 

 lower Middle Creek appropriators, the chief of which were that the 

 upper company should acquire no rights to the use of said water until 

 the supply ditch was l)uilt and furnishing water, and that the rights 

 granted by the contract should be suspended if the (piantity of water 

 furnished through the supply ditch should be less than the aggregate 



