39 



of the (luantitics of water then taken out of Middle Creek b}' the lower 

 appropriators. 



In consideration of these stipnhitions the lower appropi'iators, citing 

 the words of the contract, "do herel)y oive and grant unto the said 

 members of the said ditch company and to their heirs and assigns our 

 rights respectively to the use of the water naturally Howing in Middle 

 Creek to the extent and capacity of said sup[)ly ditch of said company 

 and the waters actually supplied l^v it into Middle Creek," 



This conti'act was signed by nearly all of the lower appropi'iators. 

 but never was acknowledged or recorded in the records of Gallatin 

 Count3\ 



In pursuance of the contract the company completed the main por- 

 tion of its ditch from Middle Creek and also the supply ditch from the 

 West Gallatin River. The latter was begun in March and completed 

 June 9, 1872. It was 12 feet wide on the bottom. Avith varying depths 

 and grade, and was intended to carr}' 3,000 miner's inches. The con- 

 tractors were paid by cash assessments levied on members of the asso- 

 ciation. 



Middle Creek ditch was also built by the members of the same asso- 

 ciation. Instead, however, of levying an assessment payable in cash, 

 each stockholder was required to provide a certain number of men and 

 ox teams, and to perform an amount of work proportionate to his 

 interest in the new canal. At that time one share entitled the owner 

 to the use of 100 miner's inches. 



For ten 3"ears after the building of ^Middle Creek canal there were 

 disputes over water rights, but no court proceedings were instituted 

 luitil the spring of 1SS3. During this interval a third disturbing ele- 

 ment had been introduced in the form of thirty or more new appro- 

 priators, who had settled on lands above the Middle Creek canal and 

 diverted water from the upper part of Middle Creek. The rights of 

 these latest claimants, with one or two exceptions, were of later date 

 than those of the lower Middle Creek appropriators and the Middle 

 Creek Ditch Company, but their position on the stream gave them 

 decided advantages. 



In April, 1883, John M. Robinson and the lower appropriators to 

 the number of twenty-one entered suit against Charles E. Hoy and 

 thirty-eight other appropriators who had diverted water from the 

 upper part of Middle Creek. At this time the lower irrigators had 

 just cause to seek redress. The Upper Middle Creek Company had 

 failed to comply' with the terms of the contract signed in 1871, in that 

 they neglected to maintain and operate the supply ditch from the West 

 Gallatin River. This neglect on their part was trivial when compared 

 with the damage inflicted on the plaintifls by the new settlers, who, 

 through their numerous ditches near the mouth of Middle Creek 



