156 P. 1090 | Mont. | 1916
delivered the opinion of the court.
The subject matter of this suit is the right of the respondent to the use and enjoyment of 50 inches of the waters of Beaver creek, Broadwater county, this state, as of date October 1, 1865. It was found and decreed by the district court that the respondent has such right subject to certain prior rights of the appellant city of Helena, but superior to certain other rights of said city to such waters. The question presented upon, this appeal is whether the record justifies this award to the respondent.
The respondent asserts as the basis of its claim that it is now, and for many years last past it and its grantors have been, the owners and in possession of the “H. & H.” and “Custer” mines, with mill sites and other real estate situate in the valley of Beaver creek, for which water is needed for irrigation, domestic, and mining purposes; that on October 1, 1865, the Murray Placer Mining Company made due appropriation of 1,000 inches of the waters of said Beaver creek for placer mining and other beneficial purposes; that in 1881 said appropriators were desirous of crossing the lands now owned by the respondent, with a ditch known as the Indian creek ditch, for the purpose of carrying the waters so appropriated to certain places of intended use, and in consideration of permission so to do given by James H. Halford and George W. Cleveland, then the owners of said premises, sold and conveyed to such owners “a perpetual right to use and of the use and enjoyment of 50 inches of the waters of said Beaver creek so appropriated as aforesaid and to be conveyed through the said ditch then in course of construction”; that the ditch was constructed and used
The appellant Spokane Ranch & Water Company is merely a lessee, and its rights are entirely bound up in that of the appellant city of Helena. The latter contests the award to the respondent as unjustified, because: (1) There is not sufficient proof of the alleged conveyance to Cleveland and Halford; (2) if such conveyance was made, it was never recorded, and cannot prevail over the claim of the city as a bona fide purchaser; (3) if such conveyance was made, there is not sufficient proof to show that Cleveland and Halford were ever divested of the right so conveyed; (4) neither evidence nor finding warrants any claim of title by prescription.
1. It is conceded in the pleadings that the Indian creek ditch
2. In our opinion, the pleadings do not permit a question that the city of Helena, by purchase in March, 1901, became vested with the record title to the entire 1,000-inch right above referred to, and out of which the unrecorded grant asserted by the respondent is carved. The conveyances to the city were duly
There is no claim of actual notice to the city of the unrecorded grant under which the respondent claims. The plea is that the
3. Nowhere in respondent’s chain of title from Cleveland and Halford is there any mention of the fifty-inch water right granted them by the unrecorded deed of Murray and McElroy; but it
4. This suit was begun in March, 1911, and to maintain the claim of title by prescription it was necessary for the
Respondent’s counsel present in their brief, as tending in some way to fortify the findings and decree, questions touching the
The judgment and order appealed from are reversed and the cause is remanded for new trial.
Reversed and remanded.
Rehearing denied April 20, 1916.