99 P. 436 | Mont. | 1909
delivered the opinion of the court.
The amended complaint in this action alleges that the plaintiff is the owner of a certain water right in Confederate creek, Broadwater county, which has heretofore been decreed to him by the district court of Meagher county; that in the year 1905 the defendants wrongfully diverted the water from plaintiff’s ditch, and deprived him of the-use thereof, to his damage, in loss of crops, in the sum of $400. Plaintiff further alleges as follows: “Plaintiff further avers that he was further damaged by the said acts of defendants in depriving him of water to which he was lawfully entitled, in that in his efforts to obtain the water so withheld he on or about the 30th day of August, 1905, in, the district court of Broadwater county, instituted contempt proceedings against the defendants herein, in a case entitled State of Montana ex rel. John Dunlavey v. Jefferson Doggett and Gus E. Pool, in which said contempt proceedings defendants herein were adjudged guilty of violating the restraining order of the court, which said restraining order was included in the said decree awarding the said water to plaintiff. The said order of the district court of Broadwater county adjudging defendants guilty of contempt of court was thereafter appealed by said defendants to the supreme court of the state of Montana and was by said court affirmed. Plaintiff in the prosecution of said contempt proceedings and in his efforts thereby to secure the water to which he was rightfully entitled necessarily incurred in attorney’s fees, witness fees, court costs, and other expenses necessarily incident to a lawsuit an expense of four hundred and fifty dollars ($450).”
The court below in effect sustained a general demurrer to this so-called second cause of action by striking the same after demurrer sustained to substantially the same allegations in the original complaint, and refused to allow plaintiff to introduce
The only question presented for review is whether the district court was correct in holding, as a matter of law, that the plaintiff could not recover the items of special damages which he offered to prove. It' is a somewhat novel question, and presents some difficulties. Indeed, the industry of counsel for neither side has been rewarded by the discovery of one just like it in the books. It is contended by the appellant that all of these sums were necessarily expended in recovering the use of the water, and should have been allowed as damages, by virtue of sections 6068 and 6069, Revised Codes, which read as follows;
“Sec. 6068. For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.
“See. 6069. The detriment caused by the wrongful occupation of real property, in cases not embraced in sections 6070, 6076, and 6077 of this Code, or provided in the Code of Civil Procedure, is deemed to be the value of the use of the property for the time of such occupation, not exceeding five years next
Counsel also quote section 6071, Revised Codes, which provides that the detriment caused by the wrongful conversion of personal property “is presumed to be (2) a fair compensation for the time and money properly expended in pursuit of the property”; but we do not think this section is at all applicable to the case at bar. The following is a quotation from the appellant’s brief: “Under these statutes, if the expenditure claimed be a ‘detriment proximately caused’ by the willful and wrongful seizure of the plaintiff’s water, it is expressly declared to be legally recoverable damage. Any outlay not regained is, of course, a ‘detriment.’ ”
The court is of opinion that proceedings for contempt are in no sense actions either for the wrongful conversion of personal property or for the wrongful occupation of real property. “The object of the power to punish by process of contempt is to enforce obedience and respect to the authority of the court.” (In re MacKnight, 11 Mont. 126, 28 Am. St. Rep. 451, 27 Pac. 336.) The proper way for a district court to enforce its order, theretofore made, adjusting water rights between claimants entitled thereto, is by contempt proceedings upon the filing of an affidavit showing a disregard of the order. (State ex rel. Pew v. District Court, 34 Mont. 233, 85 Pac. 525.) Contempt proceedings under the Code of Civil Procedure.are sui generis, and have most, if not all, of the characteristics of a criminal case, and few, if any, of a civil action. (State ex rel. Boston & Montana Con. C. & S. Min. Co. v. Judges, 30 Mont. 193, 76 Pac. 10.) If the person proceeded against is found guilty, a fine may be imposed on him, not exceeding $500, or he may be imprisoned not exceeding five days, or both (Revised Codes, sec. 7318). And no additional penalty may be imposed. (In re Sutton, 26 Mont. 557, 71 Pac. 1132.) “The proceeding in contempt is distinct from the action wherein the injunction violated was issued. Vindication of the dignity of the authority of the
These contempt proceedings being sui generis and complete in themselves, it seems to follow that they cannot be changed by construction into actions for the wrongful conversion of personal property or for the wrongful occupation of real property, and consequently those statutes fixing the measure of damages in such actions have no application. When the dignity of the authority of the court' has been vindicated, the proceeding has served its purpose. Moreover, those statutes refer in their terms to damages and costs which may be recovered in the same action, and it will probably not be contended that in such actions the defendant can be compelled to pay the plaintiff’s attorney’s fees. (13 Cyc. 80.)
The rule laid down in the ease of Plymouth Gold M. Co. v. United States Fidelity Co., 35 Mont. 23, 88 Pac. 565, is founded upon a statute commanding that, before a writ of attachment shall issue, the plaintiff must enter into a written contract with the defendant, conditioned that, if the defendant recover judgment or the court' shall finally decide that the plaintiff was not entitled to an attachment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages he may sustain by reason of the issuance of the attachment'. (See Revised Codes, see. 6659.)
The learned counsel for the appellant have called our attention to other cases in which recovery of counsel fees paid was allowed as damages proximately caused by the breach of duty
Again, it is urged that because in practice contempt proceedings are always instituted at the expense of the owner of the water, he is the one primarily interested, and should be reimbursed for his expenditures in connection therewith. It is undoubtedly true that many owners do find themselves in an unfortunate situation when their water rights are violated; but this is a subject for the legislature to deal with.
We hold that, in the absence of a statute, such expenses can- ■ not be recovered in this action. And this applies as well to the item of $8 as t'o the other sums, because it is impossible to read the amended complaint and the offer of proof without arriving at the conclusion that this sum was expended in furtherance of the same general purpose as were the other sums, to-wit, to get the defendant's punished for contempt of court.
The judgment and order are affirmed.
Affirmed.