101 P. 825 | Mont. | 1909
Lead Opinion
delivered the opinion of the court.
Action to quiet title to the right of way for a ditch, alleged to belong to the plaintiff, and for a perpetual injunction re
It appears that plaintiff is a corporation, and its stockholders are land owners whose lands require water in order to raise crops thereon, and the ditch in question is designed to convey the waters of the Clark’s Fork river for that'purpose. It also appears that the defendant made a homestead filing on April 10, 1901; that the construction of the Cottonwood ditch was begun in June, 1899, and prosecuted with reasonable diligence; that the ditch was constructed and completed across the land now owned by the defendant, before he filed thereon, to-wit, in September, 1900, and the predecessors in interest of the plaintiff were in possession of the ditch and the right of way therefor when defendant made his filing; that in 1902, after defendant filed on his homestead, the predecessors in interest of the plaintiff filed a written notice of appropriation of water to be conveyed through the ditch, and first conveyed water across defendant’s land, through the ditch in the same year; that since the fall of 1901 defendant has been in actual possession of the land filed on by him as a homestead “save and except land occupied by and as right of way of Cottonwood ditch.” These matters appear from the court’s findings of fact.
1. It is contended that plaintiff has no right in the land in question, for the reason that its predecessors in interest acquired no vested rights prior to the time when water was actually conveyed through the ditch for beneficial purposes, which was subsequent to the date of defendant’s homestead filing. We are of opinion that this contention cannot be upheld. Section 2339, United States Compiled Statutes (1901, Vol. 2), reads as follows: “Whenever by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued,, and the same are recognized and acknowl
It seems clear to us that the Congress, in these two sections, not only recognized and acknowledged all such vested and accrued water rights, including all ditches and reservoirs used in connection therewith, as were recognized and acknowledged by the local customs, laws, and decisions of the courts, and intended that all such rights should be maintained and the owners thereof protected (see Jennison v. Kirk, 98 U. S. 453, 25 L. Ed. 240); but that, in addition thereto, it recognizes and acknowledges the necessity for the preliminary work of construction of ditches and canals, in preparation for the conveyance and use of water, and confirms, in the person engaged in such work of construction, on unoccupied public lands, before his right to the use of water has actually vested and accrued, a right of way in the land over which the ditch or canal is being constructed. In other words, that the Congress plainly acknowledges a right of way for the ditch or canal as fast as the work progresses and before water is turned in, and such acknowledgment, from so supreme authority, amounts to a grant of the right of way to those who, in good faith, prosecute the work of construction, over unoccupied public lands, with reasonable diligence to completion, for the purpose of applying the completed ditch or canal to a beneficial use. Plaintiff’s ditch was completed across the land in question,
2. But it is urged that the court erred in incorporating in its decree an order restraining the defendant from interfering with the plaintiff’s ditch and right of way. We find no error in this action of the court. The findings disclose the fact that defendant has interfered with plaintiff’s use of the ditch across his land. It became the duty of the district court to afford plaintiff complete relief from the wrongful acts of the defendant. As the ditch and right of way therefor are the property of the plaintiff, the defendant is not aggrieved by an order requiring him to refrain from interfering therewith. (Kittle v. Bellegarde, 86 Cal. 556, 25 Pac. 55.) Not only that, but the injunction order was a substantial part of the relief to which the plaintiff under the circumstances was entitled. The statute (section 6870, Revised Codes) gives the action to determine adverse claims to real property. Courts of equity have jurisdiction of the action. (Montana Ore Pur. Co. v. Boston & Mont. Con. C. & S. Min. Co., 27 Mont. 288, 70 Pac. 1114.) Complete relief should be administered. (16 Cyc. 106; Hamilton v. Fond du Lac, 25 Wis. 490.) In the ease of Brooks v. Calderwood, 34 Cal. 563, Chief Justice Sawyer, delivering the opinion of the court, said: “The very object of the suit was to determine whether the defendants had any just claim or title to the premises as against plaintiff, and settle the question forever. The court has determined that they have none, and we see no reason why it may not make its judgment effectual by restraining the defendants from further setting up a false claim. It has been judicially determined that defendants have no just claim, estate, or interest in a portion of the land, and, as to that portion, there is no reason why the plaintiff should be permitted to be further harassed by them.” The purpose of the statute is
3. The defendant in his answer alleged, among other matters: That the ditch “described in plaintiff’s complaint” was constructed- across his land without his consent; “that defendant has-received nothing whatever on account of the construction of said ditch, and if it is maintained his land will be damaged in the sum of $500.” The court on plaintiff’s motion struck these allegations from the answer. In this we find no error. Appellant’s counsel in his brief says in reference to this assignment of error: “In order that appellant could avail himself of this defense, it was necessary that he lose on the first. In other words, the defense is in fact in the alternative, saying that, if the first defense is insufficient, then, before the respondent should be allowed to recover, he should pay the damages to be suffered by appellant for the privilege of maintaining its ditch. This second defense was based upon the maxim that, ‘He who seeks equity must do equity. ’ If the court should decide that respondent was entitled to the relief prayed for, before granting such relief he should compel the respondent to do equity; that is, to first pay appellant the damages past, present, and prospective, suffered because of the maintaining of said ditch.” But this position cannot be successfully maintained, for the reason that plaintiff’s ditch was fully completed across defendant’s land before any rights of the defendant accrued, and, the court having determined that plaintiff was the legal owner of the ditch and the right of way therefor, no injury of which the defendant will be heard to complain was suffered by him on account of plaintiff’s continued use of the ditch. The lawful maintenance and use of the ditch by its owner violate no rights of the defendant.
We have assumed that the damage claimed to have been sustained by appellant was occasioned by the original construction of the Cottonwood ditch. There is some reference in the answer and in the findings of the court to a ditch constructed by Rhodes and Hooper, or Rhodes and Ketcham; but as the testimony is not in the record, we are unable to determine that this ditch is not the same one which the court found was completed across defendant’s land before he made his homestead entry.
The judgment is affirmed.
Affirmed.
Rehearing
On Rehearing.
[Submitted October 5, 1909. Decided October 11, 1909.]
[104 Pac. 281.]
delivered the opinion of the court.
After the decision on appeal in this case, May 14, 1909, counsel for the appellant filed a motion for a rehearing, calling the attention of the court, for the first time, to an Act of Congress dated March 3, 1891 (see section 2477, U. S. Comp. Stats. 1901, p. 1570), sections 18, 19, and 20 of which Act read as follows:
“Sec. 19. That any canal or ditch company, desiring to secure the benefits of this Act shall, within twelve months after the location of ten miles of its canal, if the same be upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a map of its canal or ditch and reservoir; and upon the approval thereof by the secretary of the interior the same shall be noted upon the plats in said office, and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way. "Whenever any person or corporation, in the construction of any canal, ditch, or reservoir, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.
“Sec. 20. That the provisions of this Act shall apply to all canals, ditches, or reservoirs, heretofore or hereafter constructed,
A rehearing was granted, and the cause has been reargued. The contention of the appellant now is that, having failed to comply with the provisions of the Act of 1891, the respondent and its predecessors acquired no right of way for their ditch across the land in question, for the reason that, before water was actually conveyed through the ditch, the homestead rights of appellant had attached. The respondent argues (1) that the Act of 1891 has no reference to small enterprises like the construction of its ditch, which is only seven miles long; and (2) that a failure to comply with the provisions of the Act of 1891 cannot be taken advantage of by a private person, but is a matter which concerns the federal government alone. A history of the causes which impelled the passage by the Congress of the Act of 1891 would doubtless throw considerable light upon the question- of the proper construction to be placed upon that piece of legislation, but we do not deem it necessary to make the investigation. We are still of opinion that section 2339, U. S. Comp. Stats. 1901, granted a right of way for the construction of ditches across the public domain, and that the respondent’s
We, therefore, adhere to our original decision.