32 Mont. 119 | Mont. | 1905
Lead Opinion
delivered the opinion of the court.
This is a suit for an injunction to prevent the defendants from cutting the levees of, or damming up, or in any other manner interfering with a certain ditch, for thus, it is alleged, certain waters are prevented from flowing therein, thereby causing the overflowing and flooding of plaintiff’s land; and, further, that there may issue a mandatory injunction commanding the defendants to remove certain obstructions from the-ditch, else to cut a gate in the same, in order to allow the free and unobstructed flow of the water into another ditch. In other words, the plaintiff desires to have the defendants restrained from turning certain flood waters out upon his land..
It is alleged in the complaint, and appears to be the fact, that the plaintiff, since the fall of 1897, has been the owner of and in possession of a tract of two hundred acres of land; that the defendants at the time of the filing of the complaint, and at certain times thereinbefore mentioned, have been in the posses
The defendant William Flannery years ago owned the land now belonging to the plaintiff, but by several transfers it became the property in fee of the plaintiff. It appears that the creek is dry a greater portion of the year, and only carries water in the spring and the early summer; and that the artificial ditch running from the creek was constructed long before the plaintiff purchased the land, which he bought in 1897.
It becomes necessary to consider that the plaintiff alleges in his complaint that prior to his purchase of his (plaintiff’s) land the defendant William Flannery went with him, and showed him the lands bought by plaintiff, and “proposed to
It is alleged and admitted that the plaintiff is the owner of an undivided interest in, and is a tenant in common of, the Flannery ditch from the point of its connection with the East Gallatin river to its terminus in the Penwell ditch, with one Pat Toohey, Benjamin Graham and Joseph Davis, except that the defendants deny that the plaintiff has any interest in the ditch beyond the point where the same departs on the west from plaintiff’s land. Defendants admit that plaintiff has a right to the use of the water which he has appropriated from the East Gallatin river upon his premises, bringing it through said ditch. The land occupied by the defendants upon which the ditch runs after leaving the bed of the Cottonwood creek does not belong to the defendants, or either of them, and is merely in their possession under a lease and contract to buy.
The cause was tried before the court without a jury, it having been expressly waived by the parties. After the evidence
After a short statement of the case, the appellant in his brief submits what is denominated “Argument,” it being, in our opinion, a statement of facts merely, being a consideration of the evidence tending to show that certain conclusions of the appellant as to what the findings of fact should have been are well founded. Next comes the “Legal Argument,” (1) the first legal proposition being that the respondents, as tenants in common with the appellant, may not commit waste on the ditch in which they are such tenants in common, and that an injunction will lie to prevent it, both upon the ground of preventing repeated trespasses on the part of respondents and on the ground of insolvency. (2) The next point is that respondents are es-topped to deny the appellant’s right to transmit these flood waters through the Flannery ditch and the Penwell ditch to the East Gallatin river. (3) Then follows an argument seemingly in support of the proposition that William Flannery is the equitable owner of the lands over which runs the ditch after leaving the Campbell lands, the land having been patented by the United States to his mother, Catherine Flannery; the idea of counsel being that she was his representative in getting title from tho United States, he having abandoned his attempt to take it up under the timber culture Act, and she taking it as a homestead. From certain other facts in the case counsel em deavors to establish his contention that Mr. Flannery is, and always has been, the owner of the Toohey land. This point we need not give any attention to in the consideration of a suit of this character. (4) The further point is made that at the time that defendant Flannery owned the plaintiff’s land, and long before the acquisition thereof by the latter person, he (Flannery) owned an easement on the lands now in his possession, to wit, Toohey’s lands, and that that easement is a servitude on the Toohey land, and runs to Campbell by mesne conveyances. Counsel further assumes that at the time of the passage of the Act of Congress of July 26, 1866 (14 Stat. 251, c.
There is some testimony in the case, and there are certain -.allegations in the complaint, which seem to have been introduced and set up for the purpose of establishing an easement upon the lands occupied by the respondents by prescription, but ■counsel states that he does not rely upon prescription.
The plaintiff claims that he has an easement on what is called the Toohey lands, the burden upon the land being his right to have the flood waters of Cottonwood creek carried through the Elannery and Penwell ditches, rather than have them go over his land. An easement is obtained either by prescription or grant. In this case appellant expressly declares in his brief that he does not rely upon prescription. It seems that the grant upon which he relies is an implied grant in the Act of Congress of July, 1866, giving citizens the privilege of running •a ditch over unoccupied government lands. The Penwell ditch was first located in 1864. The part of the Elannery ditch running from the creek to the Penwell ditch for the purpose of •carrying off the flood waters seems to have been made and connected with the latter ditch in 1890. If the burden of carrying these flood waters came to be at any time a servitude upon the Toohey lands, it certainly could have been not earlier than 1890; but Catherine Elannery, the mother of the defendant William, had the possession of these Toohey lands transferred to her by William in 1885, at which time she undertook to initiate a homestead right under which she received a patent in 1891. The government could not grant to Campbell, the plaintiff, an easement upon the lands entered by Catherine Elannery and withdrawn from the public domain. This is enough to say to dispose of the idea of a grant from the United States to Campbell of any easement upon the Toohey lands. If the
It appears from the evidence that one Toohey owns the Too-hey lands, in possession of defendants, upon which plaintiff claims an easement; that is, the right to have the flood waters run over the said lands in the Flannery ditch. As to find for the plaintiff it would be necessary for the court to conclude that there was such a burden upon the said lands, it is apparent that such an easement may not be adjudged in a suit to which Toohey is not a party.
The main point in this case to be considered, and the one upon which respondent seems principally to rely, is the question whether or. not the defendants are estopped by the conduct of the defendant William Flannery in going with the plaintiff upon the land just before the purchase in 1897, and showing him the same, and telling him that the flood waters formerly going down the creek no longer ran over the land, but were carried around through the ditches. We cannot understand how the defendants or either of them is estopped. There is nothing in the complaint in any wise connecting Ida B. Flannery, one of the defendants, with the acts or statements of William. There is not any allegation in the pleading that William was the agent of the owner of the land, or authorized to represent him, or to make any representations for him. The statement simply is that he professed to be authorized to sell the land. There is not even a statement that he did sell it, or had anything to do with selling it. The evidence in fact shows that the plaintiff got the land from somebody else, who acted as agent. We cannot understand how, if a stranger to the owner of the land makes false representations to a person who buys the land in a subsequent transaction with a party not connected with the one making such representations, the person so making false statements at one time can be estopped in another matter, such as the case at bar, at another time, any more than if
Furthermore, the evidence of the plaintiff shows that at th& time Flannery made these representations, if he did make them, the creek-bed on the land bought by the plaintiff had been cultivated, had stubble upon it, had willows growing upon it, and the dam which prevented the waters running down upon the land had a clump of large willows upon it eight or ten feet high ; all of these circumstances showing conclusively, according to plaintiff’s testimony, that the water had not gone down the creek-bed for a great while, and that the creek-bed had not been a watercourse over the land which he bought for a long time.
The motion of respondents is not strictly a motion for non-suit, but a motion for judgment for the defendants. The alleged equities of the plaintiff’s case having been presented in the evidence and under his complaint, and no evidence having been introduced by the defendants, it was the duty of the court to determine whether or not plaintiff had established his case, or had any equities. The court found that under the evidence he had not, and under the law as laid down in Sanford v. Gates, 21 Mont. 277, 53 Pac. 749 (see, also, cases cited in Am. &Eng. Ency. of Law, 2d ed., pp. 801-803), this case is res judicata, if the holding of the court was correct, as we think it was.
We do not find that the court erred in its ruling on the motion of defendants complained of, and the judgment is therefore affirmed.
Affirmed.
Rehearing
On Motion for Eehearing-.
delivered the opinion of the court.
A motion for rehearing has been made and submitted in this ease. Appellant adverts to the fact that the point by him made, to wit, “that the respondents, as tenants in common of the ditch, may not commit waste on the ditch in which they are such tenants in common,” was not discussed by us. It was not necessary to consider the point. The reference is to the Flannery ditch. The complaint does not allege that the respondents are tenants in common in the Flannery ditch with the plaintiff or with anyone. Although the prayer of the complaint is to have respondents restrained from damming or cutting the ditch, the object of the suit, as disclosed by the pleadings, is to prevent injury to the lands of the plaintiff, in which defendant respondents have not, and do not claim, any interest whatever. They could not commit waste on the plaintiff’s land in which they do not claim any interest as occupants or otherwise. They, as tenants in common, cannot be enjoined from cutting or damming the ditch, for the reason that there is a want of sufficient allegations as to such tenancy, and, further, for the reasons stated in the original opinion.
Motion denied.