178 P. 284 | Mont. | 1918
delivered the' opinion of the court.
Plaintiffs own approximately 1,500 acres of farm lands in Musselshell county, have appropriations of water for the irrigation of the same and a main ditch and laterals for distribution. In May, 1910, they had acquired by prescription a right of way for the main ditch over a portion of land which was platted as the town site of Ryegate. The ditch crossed diagonally lots 1 and 2 in block 4, which lots, so far as material here, are owned by the defendant. This suit was instituted to secure an injunction restraining defendant from interfering with the ditch and to compel him to remove an obstruction from it.
The complaint charges that in July, 1915, defendant constructed a foundation wall for a building, projecting into the ditch at point C on the diagram, thereby obstructing the flow
The record discloses that the Milwaukee Land Company was the immediate predecessor of plaintiffs; that it owned the town site; that about 1909 it sold lots 1 and 2 to Mrs. Gregg and that she in turn sold them to defendant J. B. Gregg about 1913. In 1910 the location of a portion of the main ditch was changed so that it pursued the course illustrated by the diagram, instead of crossing lots 1 and 2 diagonally as theretofore.
The trial court found:
(2) That in May, 1910, plaintiffs’had a right of way for their main ditch diagonally across lots 1 and 2.
(3) That thereafter in the same year the old ditch from A to B was filled; the course of the ditch changed materially and the right of way for the portion filled, was abandoned.
(6) “That no grant of easement for a right of way of any estate or interest whatsoever has ever been made to the plaintiffs herein, or to any of their predecessors in interest, of any portion of either lot 1 or lot 2 of block 4 of the original town site of Ryegate, either in writing or by parol, by the defendant or any of his predecessors in interest.”
The other findings are not material to a determination of these appeals.
The court concluded that plaintiffs have no right to maintain their ditch over any portion of lot 1 or lot 2, and this conclusion follows if findings 3 and 6 are supported by the evidence.
It is elementary that plaintiffs’ right to maintain their ditch
It is also elementary that an easement may be lost by [2] abandonment; and if it is a fact that the portion of the old ditch from A to B was abandoned and a right of way for the new ditch was not acquired, plaintiffs are remediless so far as this action is concerned. The determination of the controversy, therefore, depends upon the answer to the inquiry: Does the evidence support findings 3 and 6 ?
It may be conceded that there is ample evidence to warrant the finding that the right of way from A to B was abandoned in the sense that the old ditch between those points was completely filled; that it was not thereafter used, and that no complaint is made of the action of the defendant in filling it. There is no specific finding that the new ditch was constructed upon lot 2, but, since finding 6 would be meaningless upon any other theory, we assume that it was meant by finding No. 5 to declare that it was constructed upon lot 2, to some extent at least.
The court failed to find upon the material question: Under what arrangement or agreement, if any, was the change made? The answer to this will determine whether the' court erred in its finding No. 6.
The evidence seems to point conclusively to the fact that though Mrs. Gregg was nominally the owner of lots 1 and 2 when the change was effected, the defendant J. B. Gregg was actually the owner, but this is not very material. The old ditch was filled and the new one constructed over a portion of lot 2 under an agreement between defendant and the Milwaukee Land Company — the then owner of the old ditch and right of way. The change was made at the instance and request of defendant in order to render available for building purposes a larger area of lots 1 and 2. We think it is established beyond controversy, also, that defendant was the only one who was or could be benefited by the change.
A text-writer has well said: “An easement is distinguished from a license, though it is often difficult to make out whether a particular case is the one or the other.” (Jones on [3,4] Easements, sec. 65.) An easement implies an interest in real estate; a license does not. Permanency is a characteristic of an easement, while a license, at least so long as it is executory, is a mere personal privilege, revocable at the will of the licensor. Speaking generally, an easement can be created only by an instrument in writing or by prescription (Great Falls W. W. Co. v. Great Northern Ry. Co., 21 Mont. 487, 54 Pac. 963), while a license may rest in parol.
In this instance, the intention of the parties in making the
The evidence does not justify finding 6, if made upon the theory that a revocable license only was contemplated. On the contrary, it indicates to us, clearly, that the transaction was intended to be, and in fact was, an exchange of one easement for the other — a grant of the right of way for the new ditch over lot 2, in consideration of the abandonment of the old one, and since the agreement was fully executed, the objection that it rested in parol is not available.
Section 5017, Revised Codes, was intended to prevent frauds, not to encourage their perpetration. In Lewis v. Patton, 42 Mont. 528, 113 Pac. 745, this court gave recognition to the principle now applied, and said: “It is a well-settled rule in equity that where A agrees orally to convey a right of way to B, and there is a sufficient consideration for such agreement, and, acting upon it, B enters into possession of the right of way and makes improvements to his financial detriment, equity will protect the right.”
Finding No. 6 is not sustained by the evidence upon any theory, and without that finding there is nothing to support the judgment.
It was unnecessary to a statement of their cause of action for
Counsel for respondent err in assuming that the question of
Finding No. 6 is not attacked upon the ground that it is defective, and the provisions of sections 6766, 6767 and 6768 were not affected in the least by Chapter 135, Laws 1915.
The judgment and order are reversed and the cause is remanded for a new trial.
Reversed and remanded.
Motion for rehearing denied December 30, 1918.