122 P. 567 | Mont. | 1912
delivered the opinion of the court.
Appeal from an order directing the issuance of an injunction pendente lite. The action was brought to quiet title in the plaintiff to the use of fifty inches of the water flowing in Beaver creek,
The amended answer of the defendant denies the right of plaintiff to the use of any of the water. It then, by way of counterclaim, alleges, substantially, the following: That prior to 1865 its predecessors appropriated and applied to useful purposes 1,328 inches of water flowing in the stream; that after the date of its appropriation and down to the year 1901, when defendant by mesne conveyances acquired these rights, the water was continuously used by its said predecessors, and their successors in interest; that on March 8, 1910, the defendant leased to the Spokane Ranch and Water Company, a domestic corporation, all of said water and also certain other water designated as Beaver Creek bedrock drain water, and that since the execution of said lease all of the water has been used for agricultural purposes by said lessee and by other corporations and persons owning lands in the vicinity of the lands of the lessee and using said water under such agreement with the said lessee; that at divers times since the execution of the said lease by the defendant the plaintiff has by means of ditches tapping the stream above the head of the ditch by which the water is conveyed to the lands
The contention is made that the counterclaim does not state facts sufficient to warrant the making of the order. It will be noted that the pleading contains no allegation showing that defendant is bound by the terms of the lease to protect the Spokane Ranch and Water Company in the quiet enjoyment of the right leased, nor that the reversionary interest is being injured in any way, nor that the defendant will suffer any pecuniary loss if the plaintiff is not restrained during the progress of the litigation from doing the acts complained of. The only allegation of wrong other than that upon which defendant desires ultimate relief is that which is accruing and will accrue to the Spokane
That a landlord may maintain an action against a stranger for
The right to the use of water is an incorporeal hereditament, an intangible right. From its nature a contract with respect to it cannot, technically speaking, establish the relation of landlord and tenant. (Swift v. Goodrich, 70 Cal. 103, 11 Pac. 561.) Wrongs done by interference with such an interest cannot therefore be redressed by the same character of actions as are applicable to wrongs done by the invasion of corporeal rights. The most appropriate remedy to protect such an interest is a suit in equity. (Barkley v. Tieleke, 2 Mont. 59.)
But the form of the remedy does not alter the relation of the parties to each other or to their respective rights in the property. Under the statute, with the exceptions enumerated, an action must be brought in the name of the real party in interest. (Rev. Codes, see. 6477.) There can be no doubt of the right of the
The purpose of an injunction pendente lite is to preserve the status quo until the ultimate rights of the parties may be determined. Under the facts stated, the defendant has no concern as to whether its lessee is disturbed or not. The running of the statute is stopped by the pendency of the action; and, if the lessee is indisposed to assert its right of present use under its contract, this is no concern of defendant. The lessee might by intervention in this action or by an independent action obtain temporary relief by injunction, but the defendant is suffering no injury which demands this temporary relief. It must follow, therefore, that the court erred in issuing the injunction at the instance of the defendant. The order is accordingly reversed.
Reversed.