Arnold v. Passavant, 19 Mont. 575

Arnold v. Passavant

19 Mont. 575 | Mont. | 1897

Buck, J.

Did the court err in admitting evidence for the purpose of showing that more than 30 or 40 acres of the ranch of plaintiff, patented in 1875, were susceptible of irrigation by means of plaintiff’s two ditches?

Appellants insist that, inasmuch as the replication failed to deny the averment in paragraph three of their answer that plaintiff prior to 1879 had no beneficial use for more than 50 inches of said water, said evidence should have been excluded. The defenses as set forth in the answer are somewhat inconsistent ; that is, there is an inconsistency between the theory of the defense in the direct denials of the averments of the complaint and the other defenses, including the one embraced in paragraph three.

The mootable question of whether a defendant can set forth *580in Ms verified answer a defense absolutely contradictory of denials therein is not before us. But any toleration by the courts of inconsistent defenses in the same answer is due only to a desire to fully protect a defendant’s interests. By setting forth inconsistent pleadings, a defendant should never be allowed to lay a snare for his adversary. This, however, is simply a suggestion so far as the actual merits of this case are concerned.

Plaintiff’s complaint, in our opinion, contained averments sufficient to tdnder a general issue. Defendants’ denials raised a general issue. The admission of paragraph three of the answer, that plaintiff was entitled to 50, but no greater, number of inches of the waters of Spokane creek, was simply an attempt to eke out the absolute denial that he was entitled to any of the waters of said creek. Regarded as a defence by itself, said paragraph three is also incomplete. Therefore it did not set forth any new matter requiring a specific denial in the replication. Nor does paragraph three plead sufficiently any abandonment of any part of plaintiff ’ s originally acquired water right, or any lack of diligence in the application of any of the water to a useful purpose, which would be in the nature of an abandonment.

Without deciding whether any lack of diligence or abandonment in respect to plaintiff’s water right should have been pleaded in order to admit the evidence to establish the same, nevertheless we think that it would always be the better practice to plead such a defense.

But even conceding that any lack of diligence on plaintiff’s part might have been shown under the general issue, the evidence fails to show that plaintiff was guilty of any unreasonable delay in the application of any water to a useful purpose. Plaintiff testified, and he was not contradicted, that he cultivated his land, and used water to irrigate it, as he and his partner got money in their pockets. For all that appears, he was a farmer, struggling for a livelihood, and clinging to his water right for the benefit of the lands for which it was originally acquired. There had been no diversion of water *581from this creek by plaintiff or his predecessors for speculative purposes. These lands and this water right appurtenant to them had been acquired prior to any appropriation of any of the waters of Spokane creek by Miller, defendant’s predecessor.

The jury found that 140 acres upon plaintiff’s first patented ranch, and 40 acres on his other ranch, were capable of being covered with water, by means of the two ditches as early as 1869. By inference from the .mere fact that plaintiff had only 45 acres on his two ranches under cultivation, alone, could he have been held guilty of a lack of diligence.

The jury found that prior to 1877, in the low-water season, plaintiff had use for all the water of Spokane creek naturally flowing down to his ditches. If this be true, would he have been justified in attempting to bring more acreage under cultivation? The trial court, under this condition of affairs, committed no error in refusing to find-that plaintiff had, or had not, used reasonable diligence in applying any part of the water to a beneficial use.

It follows that the objection that the court refused to instruct the jury on the ground of whether or not plaintiff had used reasonable diligence is also without merit.

Are the findings contradictory ? Not in any material respect. It is true, the j ury found that Miller and defendants claimed first right and used the waters of Spokane creek in defiance of plaintiff’s claim, but they also practically found that the defendants had not established their defense of adverse possession. We think the evidence is sufficient to justify the findings of the jury and the decree of the court. The judgment is affirmed.

Affirmed.

Pemberton, C. J., and Hunt, J., concur.