131 P. 1067 | Mont. | 1913
delivered the opinion of the court.
This action was brought to have determined the extent of the respective interests of the plaintiff and defendant in a water right acquired by their predecessors by appropriation for agricultural purposes from Race Track creek, formerly in Deer Lodge, now in Powell county. The original appropriation was small, and was made by John Duncan in 1871. It was enlarged to 400 inches by Duncan and L. Strickland in 1872; the diversion being completed on June 5 of that year. They each held a possessory right upon the public lands lying along the south side of the stream. They made the appropriation jointly, and constructed a ditch which they used in common to a point at which a change in the direction became necessary in order that iach might convey the amount of water needed to his own lands. From this point each constructed his own ditch. Title to the lands held by them, respectively, was subsequently acquired by them or their respective successors by patent directly from the federal government or by deed from the Northern Pacific Railroad Company. In 1881 one Magone succeeded Strickland in his right to a portion of the lands then held by him, and to his entire interest in the water right and ditch. Magone subsequently acquired other lands. On April 1, 1910, the plaintiff purchased substantially all of his holdings, including his interest in the water right described in the conveyance as an undivided one-half interest. In 1884 John and Henry Quinlan succeeded by purchase to the rights and interests of Duncan, including that held by him in the ditch and water right. The defendant, a son of Henry Quinlan, thereafter became, and when this action was brought and tried was, the owner of the Duncan interests by conveyance from his father and John Quinlan. In 1887 Magone and the two Quinlans, desiring to cultivate portions of their land lying upon the slope above the Strickland-Duncan ditch, jointly constructed a second ditch from a point on the
The complaint contains two counts. In the first the plaintiff bases his claim to an undivided one-half interest upon the decree. He alleges that defendant claims adversely to him, and under such claim is interfering with the use and enjoyment of his right. In the second count he alleges title and right to the use of an undivided one-half interest, and an adverse claim by defendant which is without right. The prayer is for a decree declaring that the plaintiff is the owner of an undivided one-half interest, and that defendant’s adverse claim be adjudged to be without foundation. In his answer to the first count defendant admits the existence and validity of the decree; but denies that plaintiff by the terms thereof is entitled to an undivided half interest in the amount awarded therein to the predecessors of the plaintiff and defendant, or any other or greater interest than one-third, or 133⅓ inches. He denies all of the allegations of the second count, except that he asserts an interest adverse to plaintiff to the extent of the difference between a one-half and a one-third interest, and pleads the decree as an adjudication that Magone and the two Quinlans were each the owner and entitled to a one-third interest, and alleges that defendant is es-topped thereby to claim any other or greater interest. There was issue by reply.
The substantive question presented to the district court for determination was whether the decree of July 22, 1890, was" to be taken as a conclusive adjudication of the extent of the rights of Magone and the two Quinlans inter sese, and hence those of plaintiff and defendant, their successors, or whether it should be construed by the aid of extrinsic evidence and their rights declared accordingly. The court held that, since the decree does not upon its face appear to have adjudicated the rights of
The integrity of the decree is assailed on the grounds (1) that the complaint does not state facts sufficient to constitute a cause of action; and (2) that the former decree was an adjudication of the interests of the parties inter sese, and that the court erred in not accepting it as such. The first contention may bé dismissed with the remark that, whatever may be its merits when referred to the first count in the complaint, it must be overruled as to the second count. As appears from the foregoing statement, it is alleged therein that the plaintiff is
The second contention is equally without merit. Section 7917, Revised Codes, provides: ‘ ‘ That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. ’ ’ Section 4852 is in part
In Russell v. Place, 94 U. S. 608, 24 L. Ed. 214, in speaking of the admissibility of parol evidence to show what issues had been tried in a former controversy, the court said: “It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that
There was scarcely any conflict in the evidence as to what the facts were, either as to the issues tried in Meagher v. Glover, or as to what the relative rights of Magone and the Quinlans inter sese were, and hence what are those of the plaintiff and the defendant. The court found that Magone and the Quinlans made common cause as against all the other parties, but that as among themselves there was no controversy whatever. There is no complaint, nor is there any foundation for any, that the findings are not supported by the evidence.
Counsel say in their brief that, inasmuch as the decree in Meagher v. Glover adjudged the right to Magone and the
Let it be assumed, however, that the decree furnished a basis for the presumption that Magone and the Quinlans were entitled to a one-third interest each. As between them, this presumption was prima facie only, and could be overturned by evidence showing the facts. (Shiels v. Stark, 14 Ga. 429; Edwards v. Edwards, 39 Pa. 369; 38 Cyc. 74.) Though a different rule might apply to persons who purchased from them without notice of the actual condition of the title, and on this point we express no opinion, the evidence shows that both the plaintiff and the defendant at the date of the conveyances un
The judgment and order are affirmed.
Affirmed.