20 Mont. 364 | Mont. | 1898
The only question presented by this appeal is as to whether the District Court erred in excluding the evidence offered by the defendant to prove that the two lateral ditches in controversy were not appurtenances to the main ditch, a one-third interest in which the plaintiff purchased of defendant, as shown in the statement of the case.
The lateral ditches are not mentioned in the deed executed by defendant to plaintiff for the one-third interest in the main ditch. The District Court, however, excluded the evidence offered to show that such ditches were not appurtences to the main ditch, and found, as a matter of law, that such lateral ditches were appurtenances to the main ditch, by the terms of the deed to the one-third interest therein. We think this was error. It does not, in our opinion, appear from the
As none of these things appear upon the face of the deed in question, and which we think ought to appear, either expressly or by implication, and as the evidence offered and excluded was not intended to contradict or alter the terms of the deed, we think the court erred in excluding it, and finding, as a matter of law, that the lateral ditches were appurtenaces to the rights of plaintiff acquired by the deed to the interest in the main ditch.
The judgment and order appealed from are reversed, and the cause is remanded for new trial.
Reversed and Remanded.
