City of Helena v. Rogan

26 Mont. 452 | Mont. | 1902

Lead Opinion

MR JUSTICE MILBURN,

after stating the case, delivered the opinion of rhe court.

Numerous points liaAm been argued and submitted, the attack being on tlie sufficiency of tlie complaint. Tliey are as follows:

1. Has tlie city tlie right to acquire by condemnation proceedings water rights for the purpose of establishing a water supply system for the purposes set out in the complaint? We think it has. House Bill 203 of 1897, amending Section 4800 of the Political Code of 1895, is entitled “Mu. Act toi amend Section 4800 of the Political Code relative to legislative powers of cities and to enable cities and towns to acquire by purchase, construction or condemnation proceedings water plants, water supplies, franchises, public buildings and sewers.”

“Section 4800. The city or town council has power: * * * (64) * * * Por the purpose of providing the city or town with an adequate water supply for municipal and domestic purposes, the city or town council shall. procure and appropriate water rights and title to the same and the necessary real and personal property to make said rights and supply available, by purchase, appropriation, location, condemnation or otherwise.” (Laws of 1897, p. 203.)

The above provision, which has been in force since March 8, 1897, plainly gives the city the power sought to be exercised in this suit. The Act referred to is the last utterance of the will of the legislature on the subject, and controls.

2. Has the district court of Lewis and Clarke county jurisdiction to try and determine this suit under the allegations of the complaint? We think it has.

The plaintiff seeks to condemn pro Santo the respective water rights of the defendants. Although the language of the complaint is very far from explicit, there seems to be an attempt to allege that each of the defendants owns a water right appurtenant to lands in Lewis and Clarke county, — a right to the use of water running in Prickly Pear* .creek. It also appears that McClellan creek, which lies entirely in Jefferson county, is a tributary of Prickly Pear creek, and that plaintiff desires to divert from said McClellan creek 350 inches of water.

Each person owning a valid water right in Lewis and Clarke county is the owner of a certain incorporeal hereditament, to-wit, the right to have the water flow in Prickly Pear creek from the head thereof, and from the head of each tributary thereof above his place of diversion, in sufficient quantity to the ‘head of his ditch or place of diversion, and to have it of such quality as will meet his needs as protected by his water right; tliat is, he owns an easement in the stream and its tributaries above his point of diversion. lie also' has the right to require appropriatoi's subordinate to him and his water right,, who have appropriated and who1 take water from the stream or its tributaries below his point of diversion, to forbear using such water when such use will deprive appropriators prior to him, downstream, of the use of water to1 which they are entitled ; .otherwise he might be required to forbear- the use of water to which he is entitled in order to- supply the appropriator first in order of priority. This interest in the stream and its tributaries is an easement, and is part of and incident to the water right, to-wit, the property sought to bo condemned. Therefore we see that the property sought to- be condemned extends over part of the two counties mentioned.

Section 610 of the Code of Civil Procedure provides: “Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, as provided in this Code: (1) For the recovery of real property, or of an estate or an interest therein, or for the determination in any form of such right or interest, and for injuries to real property. ■* *

Section 2216 of the same Code, referring to proceedings in eminent domain, is as follows:- “Sec. 2216. All proceedings under this Title must be brought in the district court of the county in which the property is situated. They must be commenced by filing a complaint and issuing a summons thereon.”’ This section is identical with Section 1243 of the Code of Civil Procedure of California. It is well to note that Section 2216 provides that all proceedings in eminent domain must be brought in the district court, etc., whereas Section 610 requires that actions relating to real estate as aforesaid must be tried in the county in which tire subject of the action, or some part thereof, is situated, etc. There has been some controversy as to the effect of the words “be brought,” — as to whether the actioar, having been brought in the county where Hie property sought to be condemned is situated, may be tried and determined in such county. We do not think there is any merit in the controversy.

.In the case of California S. R. Co. v. Southern Pac. R. Co., 65 Cal. 394, 4 Pac. 344, the court; in a condemnation proceeding, held that a proceeding in eminent domain, according to Section 1243 of the Code of Civil Procedure, supra, must be brought in the superior court of the county in which the property is situated, and in the opinion in the case uses this language: “The conclusion here reached is sustained, in our judgment, l>y Section 1243 of the Code of Civil Procedure, requiring all proceedings under the title in regard to eminent domain to be brought in the superior court of the county in which the property is situated. This language means something more than that the proceeding must be commenced in such superior court. There are strong reasons why such proceeding should be had in the county where the land sought to be condemned is situated. The compensation for the land sought to be taken is to be determined upon testimony, and the witnesses most competent to speak upon this subject will usually be found in the county referred to.”

Iix support of respondent’s contention that the action should not be brought in Lewis and Clarke county, but in Jefferson county, counsel argues that an action for nuisance committed by persons polluting the stream in Jefferson county would necessarily have to be brought in Jefferson county. .We do not think that reason or the authorities-will bear out this contention. In case a nuisance be erected in one county to- the injury of lands in another, then the action may be brought in either county. An action for a nuisance created by the erection of a dam in a navigable river is local, and cannot be sustained elsewhere than in ihe county where the dam is erected, unless in the case where the dam erected in one county injures the land of an individual in another, when the action may be maintained in either county. (Oliphant v. Smith, 3 Pen. & W. 180.) In the case last above referred to, as in the case at bar, a. view is necessary, and the court remarks: ‘‘And, in general, wherever a view may be necessary, there the action must be brought in the couniy where the injury arises;” the court adding that the exception to the rule is the erection of a nuisance in one county to the injury of lands in another, in which case the action may be brought in either county.

Besides, each one of the defendants having a water right— that- is, the right to the use of water diverted from Prickly Pear creek — has an interest in all the water of Prickly Pear creek and its tributaries above his point of diversion. Hence it follows that the appurtenance to his land in. Lewis and Clarke county extends into Jefferson county, and is properly located in both counties; in other words> it may be called a “blanket right” spread over two counties. Following the reasoning of the courts which have declared that in case of injury in one county resulting from a tortious act in another county the action may be brought in either county,'and considering Section 2216, supra, which, in our opinion, requires the action to be brought and ivied in the county where the property is situated, subject, perhaps, to removal for sufficient causo, and the locus of the property, as we have herein described it, as being in both counties, we must and do conclude that the action was properly brought to be tried in Lewis and Clarke county.

3. Is it necessary to allege in the complaint that the water supply can be obtained without incurring an indebtedness, or that the limit of indebtedness has been extended in the manner prescribed by Section 6 of Article XIII of our Constitution; or is it essential to allege that the question of procuring a water supply has been submitted to, and voted upon by, the taxpayers, and that a majority of votes has been cast in favor of the proposition ? We think that each of these questions must be answered in the negative.

If the city has not put itself in a position to take the property sought, it may not take the same; but power to initiate proceedings to condemn and power to take — that is, to pay the, damages which may be assessed, and to possess itself of the-necessary property after a decree of condemnation has been entered thereon — are very different matters. It is not to bo presumed that a city is without- power to do what it undertakes to do in a case of this kind; nor is it to be presumed that it has failed to do what is necessary for it to do in order to succeed in its undertaking. If, because of failure to do any of the things suggested in the questions above stated and now under consideration, it has not the authority to maintain the action, to make this manifest it is only necessary that such failure be shown by answer, if it be material in opposition to the condemnation of the property. The law giving it the power to institute condemnation proceedings does not require it to allege in its complaint that it has the money in hand to pay for the property after It- has been condemned, or to aver that the limit of indebtedness has been extended, or to declare that the election aforesaid has been held with the result suggested.

4. Is it fatal to omit from the complaint an allegation that the city has a right of way from the creek to the city, or that it is able to get. one ? It does not- appear to be necessary so to allege. It is not- any concern of the owners of the property whether the water comes to Helena or not. It would hardly be necessary to allege and prove, that the city has engaged the services of a competent, civil engineer, and put him under bonds to lay out a feasible route, and to direct and superintend the laying of the pipes so well and faithfully that the water will actually run to Helena, before the owners of the property sought may be required to part with it for a public use,

"What rights and remedies a city taxpayer, as such, may have in case the plan is foolish, or impossible of execution, is another question; but this we do not now consider.

5. Is the description of the several properties to be condemned sufficient? The law requires that “a description” of tlie property be set out in the complaint. The city seeks to condemn numerous water rights, each pro- Lardo. What is a water right? In Smith v. Denniff, 24 Mont. 21, 60 Pac. 398, 81 Am. St. Rep. 408, it is defined as the legal right to use water. This may be modified to mean, in this case, the right to use water appropriated according to law .from the streams of the state for any useful or beneficial purpose. Prom what description there is in the complaint, we learn that all of the water rights referred to- are rights to- the “use of * * * waters * * * for irrigation purposes.” Condemnation proceedings are statutory, and a strict compliance with the requirements of rhe statute is necessary. It- has been held that “extreme accuracy is required in the description of the property sought to be acquired, and there must be no uncertainty in such description or in the degree of the interest sought to be acquired.” (Metropolitan Elevated Railway Co. v. Dominick, 55 Hun. 198, 8 N. Y. Supp. 151; In re New York Cent. & H. R. R. Co., 70 N. Y. 191; Aliso Water Co. v. Baker, 95 Cal. 268, 30 Pac. 537; 3 Estee, PlI. 5452; Long, Irr., at page 262.) We think that it is not necessary to go to extremes in describing the'property, but we agree with the last-named authorities in what is said as to the necessity of so- describing the property that there will be no- uncertainty in the decree, and that the commissioners may know what damages to appraise.

The city is asking the court for leave. to: damage the lands of respondents. This is apparent from the complaint, for there is no stronger inference to- be drawn therefrom than that the water rights are- held for the useful and beneficial purpose of irrigation. There cannot be irrigation without lands to irrigate. There is no description whatever of the lands to be damaged, except the reference to “the use of * * * the waters * * * for irrigating purposes in said county,” thereby giving the court an idea that at least part of the land to which each water right pertains is somewhere in Lewis and Clarke county. Certainly, the value of the- water right to- be taken, in whole ot in part, is dependent upon, the lcind and extent of the lands irrigated, .as well as upon such other uses as the owner of such right may hereafter be able to put it to, as he is permitted to do under Section 1882 of the Civil Code.

It may not be successfully argued that, as in the present case, — in which there are so many scores of owners, — it would be a tremendous labor, involving great expense, to describe fully each water right with the facts necessary to let the commissioners know what property they shall consider in assessing damages, and to inform the court what to include in its decree; 'so that, at least when the decree is recorded in the office of the recorder of deeds, it may give notice to the world what sort of interest and what title the respective owners have in.and to their real estate after the condemnation of some part or interest therein has been concluded. The argument of convenience in drawing complaints cannot appeal to us. The case is the same as to that as if the desire of the city were to damage a ten-acre farm, easily described, by condemning and taking a water right appurtenant thereto. How full the description need be is not for us to point out. It should, however, we may venture to say, include a description of the lands, their location, the point of diversion of the water-, and the number and size of the ditches upon the said lands or appurtenant thereto.

6. Another question presented is this: Can water already appropriated to a public use be condemned in eminent domain proceedings for any other use, whether the other use is a more necessary public use or not? Section 2214 of the Code of Civil Procedure provides that: “Before property can be taken it must appear: * * * (3) If already appropriated to some public use, that the public use to which it is to- be applied is a more necessary public use.” It must so appear in the complaint. The use of water to irrigate a farm under the water-right law is a public use. (Section 15, Art. Ill, Constitution; Ellinghouse v. Taylor, 19 Mont. 462, 48 Pac. 757.) The law permits the condemnation of a water right by a city, as we have seen.' Therefore the position taken by respondents, to-wit, that water which is being used for any beneficial use cannot be taken for any other use, whether the other use is a more necessary public use or not, is not tenable. Whether the use of water by the city is necessary — that is, whether the city needs a water supply — is for the city, and for the city alone, through its council, to say. Whether it is necessary to condemn the water right in order to supply the city is to be alleged, and is a judicial question to be determined by the court. That it is a more necessary use than that of the ranchman is to be alleged, and by the court judicially determined. If it wore not, then not only could a city condemn and take the water from a ranchman owning and irrigating 1G0 acres of land, but could, on its own allegation of superior necessity, condemn and take the water from another and a neighboring city, and leave it dry. And here again we may, in passing, say that the necessity for a complete description of the property to be taken is necessary, to the end that the court may see that the proposed use is superior in point of necessity to- the present public use.

The right to take depends largely upon the superior necessity. In 1886 this court, in City of Helena v. Harvey, 6 Mont. 114, 9 Pac. 903, held that the right of the city to have the property condemned must be stated in the complaint. (Revised Statutes of 1879, Code of Civil Procedure, Sec. 586.) The right will depend, among other things, upon the answer to the question: Is the intended use superior in point of necessity to the present use? Enough must be alleged to show to the court that it is. The mere statement that it is a use superior in necessity would not be sufficient without the facts as to the present use coupled with those appertaining to the intended use.'

Resides the above matters, which are called to our attention in the briefs, wo think it not inappropriate to suggest for the consideration of counsel the following matters, which occur to us:

It seems that, the city is attempting to secure a Water right by acquiring a small fractional interest in each of a very large number of water rights belonging to numerous persons, respectively, these water rights being of different dates of appropriation from 1866 up to and including 1890, involving different priorities. If ¡.lie city prevail, what will it have if it get the decree prayed for? It can only acquire from each owner what he owns. If A. be subordinate to B. in the use of water, and B. be subordinate to C., and so on, how can the city lawfully use any of the water formerly used by A. until B. is through with the use of what is left to him after the condemnation proceedings are concluded ? If there be water enough for all, there would be no trouble; but, if the ranking appropriators use each to the full his prior right, the small fractions owned by the city would be of little value. May it not be assumed that water is scarce in the creek, or this proceeding would not. be in court? We pass no opnnion on this matter, either as-affecting1 the possibility of constructing a complaint which will be good for substance, or as affecting any other phase of this case.

AVe suggest further, as worthy*of consideration, this point: In the absence of any allegation as to the volume of water in McClellan creek from which the city seems to desire to divert water, can a complaint be good which does not state facts sufficient to show the court that it is impossible for the city to appropriate an ample supply, in manner and form as any other p^erson may under the previsions of the Civil Code, Title VIII, Part PV, Div. II, Section 1880, et seq., and amendments? There are no such facts set out in the pleading. If there be water in the stream sufficient for all, and to spare, may the city condemn the rights of others? We pass no1 opinion as to this question.

AVe suggest, also, that counsel examine the law upon the question, which is suggested to us by reading Section 97 of Long on Irrigation, and the cases cited, in reference to the measurement of water, and as to whether a complaint or decree in such a case as the one before us would be good if it employ only tlie word “inches” in relation to the measurement of water. We do not express any opinion as to this matter.

Judgment affirmed.

Affirmed.

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Concurrence Opinion

Mr. Chimb Justice Beastly:

I concur.

]\Ik. Justice Pigott:

While I am not satisfied that the description of the property sought to be condemned is fatally defective, I am inclined to think that the better reasons support the conclusion announced in paragraph 5 of the opinion. I concur.

[Por opinion on motion for rfehearing see 27 Montana Reports, p. —.]