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Hornbuckle v. Stafford, to be entitled The complaint alleged that the appellee was entitled to such quantity of the waters of Avalanche creek, or gulch, as it is sometimes called in the record, in the county of Meagher and territory of Montana, as would amount to 35 inches, miners' measurement, at any point on said creek above the place were the White and Tower ditch taps the same, and that his right to said quantity of water was, on July 11, 1871, established by a decree of the district court for the Third judicial district of Montana in a suit wherein one John Gallagher and the appellants were plaintiffs, and one Basey and the appellee and others were defendants The decree was affirmed on appeal by the supreme court of the territory of Montana, and, on appeal from the latter court, was affirmed by this court The case is reported under the name of Basey v Gallaher, 20 Wall 670 The complaint further alleged that the appellee was the owner of a water ditch, known as the Basey ditch, which tapped said creek about one mile below what was known as the Avalanche ditch, and above the White and Tower ditch, and was entitled to flow into said ditch such a volume of the water of Avalanche creek as would make 35 inches, miners' measurement, at the head of the White and Tower ditch, which would be equivalent to 125 inches at the head of the Basey ditch The complaint then charged that, on April, 1878, the appellants unlawfully diverted all of the water of said creek, above the heads of the Basey and the White and Tower ditches, so as to prevent the water, or any part of it, from flowing into the ditches of the appellee, and continued to do so, notwithstanding the demand of appellee that they permit the water to flow into his ditch The prayer of the complaint was that appellants be forever enjoined and restrained from diverting the water from the appellee's ditches, and for general relief .
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