Old Missoula

Soldiers Chased Ditch Officials

Guns Backed Up Orders to Get Away From Maclay Laterals, Malone Says.

Five soldiers from Fort Missoula on the evening of Saturday, July 28, ordered officials of the Missoula Irrigation district and guards employed by the district to patrol its big Orchard Homes ditch, away from the laterals of Harry D. Maclay and enforced their commands with loaded guns, according to a statement made yesterday evening by M. A. Malone, president of the district who, in an interview with a representative of The Missoulian characterized the action as a “dastardly outrage.”

The clash was the culmination of a bitter feud of long standing between Mr. Maclay and farmers whose land lies below, and along, the ditch and who are fellow members of the irrigation district. They have claimed that Mr. Maclay has been drawing more than his share of water into his laterals and consequently depriving those whose lands lie below his, of their share. A petition for an injunction was filed about 10 days before, asking that Mr. Maclay, by order of court, be forbidden to use on his land water from the ditch.

Permission to Measure.

The ditch guards and irrigation district officials went in a body to the Maclay laterals, located on Fort Missoula land he had leased, on the evening of July 28 to inspect his floodgates and measure the flow of water through them. They were accosted by a mounted soldier when they arrived, Mr. Malone says, and he gave them permission to measure the opening on one headgate. They were about to measure the vents in the other headgates, he said, when four other soldiers headed by Mr. Maclay and his father came up and ordered them to stop.

“We went on,” Mr. Malone continued, “when suddenly the officer in charge again ordered us to cease and line up. When we did not comply he repeated the order and the soldiers loaded their guns. We were obliged to line up and to march out of the vicinity. The soldiers used foul language in several instances and their manner was decidedly threatening.

“A short time later we went to Colonel P. H. Mullay, commandant of the fort and asked that we be allowed to examine Maclay’s heatgates without interference by the soldiers. Colonel Mullay would not guarantee that we would not be interfered with and would not even grant us the permission we asked for.”

Colonel Mullay Denies Charge.

Colonel Mullay last night denied that he had refused the irrigation district officials permission to inspect the Maclay headgate. “They came to me with such a request and I went with them and their attorney to inspect the headgates,” he said.

Ed Mulroney, attorney for the district, said they went to make this inspection but that the vents had been closed up by order of the district officials.

Request Deputy Sheriff.

A few weeks ago district officials called the sheriff and asked that he appoint a deputy to patrol the ditch and prevent owners of water rights from drawing more than their share of the water. The appointment has not yet been made.

“Farmers on the lower end of the ditch are losing their crops from lack of water,” said Mr. Malone. “The situation is desperate. Plenty of water is flowing into the ditch at its head but at the other end there is none flowing out. It is absolutely necessary in order to save them from severe losses to distribute justly the limited supply of water of the ditch.”

The above article appeared in The Daily Missoulian on August 7, 1923.

https://www.newspapers.com/image/352283803/?terms=orchard%2Bhomes%2Bditch

 

A second article relating to the ditch controversy appeared on the same page of The Daily Missoulian on August 7, 1923:

 

Ditch District Is Loser; Will Appeal

Lentz’ Decision Denies That District Owns Title to Water Rights.

The petition for injunction of the Missoula Irrigation district asking that Harry D. Maclay, one of the members of the district be forbidden to draw water from the Orchard Homes ditch, was denied by Judge Theodore Lentz yesterday when he sustained the demurrer to the injunction filed by the defendants. The case will be immediately appealed to the supreme court. E. C. Mulroney, attorney for the irrigation district said last night.

The decision, attorneys say, is revolutionary and contrary to the established conception of the rights and powers of irrigation districts. It predicates that the title to an irrigation ditch and its water rights does not automatically pass to the irrigation district when it is formed. It denies that the Missoula Irrigation district owns the Orchard Homes ditch or has power to regulate the distribution of its water.

In the complaint filed in the middle of July, the irrigation district claimed that Maclay has been drawing into his laterals, which are near the head of the ditch, more than his share of water and consequently depriving other owners of water rights of their just share. Maclay, the complaint said, has been using the water to irrigate a 500-acre tract of Fort Missoula reservation land he has leased from the government not in the boundaries of the district.

In his answer to the complaint, Mr. Maclay categorically denied that the Missoula Irrigation district is a duly and regularly organized corporation or that it has any interest in the Orchard Homes ditch or right to regulate the distribution of its water supply. He also denied that he ever consented in writing to have his lands included in the irrigation district.

Mr. Maclay alleges that the action against him was not brought in good faith and that it was the result of a quarrel between himself and M. A. Malone, president of the district who, he said, publicly attacked him for leasing 440 acres of the military reservation land and not dividing it up with other Orchard Homes residents. Malone accused him of using unfair means in obtaining the lease, Mr. Maclay said, and Malone would see that he, Maclay, would be unable to obtain any of the water from the ditch to irrigate his land. The action, he claimed, is merely an attempt to carry out this threat and to destroy his lease with the government.

The defendant said that if he were prevented from using the water on his land, his crops would be damaged in the sum of not less than $11,000 a year for three years. The number of inches due each owner of a water right is dependent on the amount of land he has under cultivation, the answer asserted and it was claimed that Mr. Maclay is consequently not drawing more than his share of water from the ditch.

 

A lawsuit later filed by Harry Maclay, alleging damages he suffered because of actions by officials of the Orchard Homes Irrigation District, was finally decided by the Montana Supreme Court in 1931. The court upheld the actions of the Consolidated Ditch company and dismissed Maclay’s suit. A detailed short history of the water rights associated with the development of Orchard Homes is found in the judgement summation. It frequently refers to property held by the “Military Reserve” in connection with the use of water from the ditches referred to in the lawsuit. No doubt the naming of ‘Reserve Street’, Missoula’s busiest thoroughfare, came about in deference to the location of the Fort Missoula’s Military “Reserve”, which Reserve Street bordered.

 

The Maclay vs. Missoula Irrigation District case ruling is available on the internet at the link below:

https://www.courtlistener.com/opinion/3565358/maclay-v-missoula-irr-dist/