3 Mont. 215 | Mont. | 1878
The report of the appeal in this case from the order of the judge dissolving a temporary injunction renders needless a repetition of the facts which are stated in the opinion of the court. 2 Mon. 510. The complaint was filed April 20, 1876, and contained the following allegations: That the plaintiffs [respondents] and their grantors and predecessors in interest on and before April 19, 1876, were the owners of the Fabian water ditch, which had been constructed for the purpose of conveying all the water of Silver creek flowing in Ottawa gulch upon placer mines of plaintiff's in Jenny’s, basin on Jenny’s fork; that they appropriated the water by means of this ditch from the date of its construction and thereby acquired a prior right to the use thereof; that while they were in the peaceable possession of the water, the defendants [appellants] wrongfully diverted the same from the Fabian ditch, by means of another ditch, which intersected Silver creek at a point above the head of plaintiffs’ ditch; that the defendants have continued
The answer denies specifically the allegations in the complaint and alleges that Ottawa gulch was located and recorded October 4, 1864, as mineral land, and the water flowing therein, which includes that claimed by the plaintiffs, was appropriated for the usé of the miners in the gulch; that the defendants have been working on their placer ground in this gulch and using the water since July 20, 1866 ; that long after this use and appropriation of the water by the defendants, certain parties, J. 0. Loyd and others, owned placer claims in Jenny’s basin on Jenny’s fork of Ottawa gulch and recognized the rights of the defendants to the water: that said Loyd and others entered into an agreement with the defendants and other miners of Ottawa gulch that they would permit the water to flow down the gulch whenever the defendants and other miners wished to use the same, if the defendants and other miners would allow Loyd and others to convey the water to Jenny’s basin ; that Loyd and others then dug the ditch, which is claimed by the plaintiffs, under the agreement and were not to have any right to the use of the water as against the defendants and other miners in Ottawa gulcli; that this was a personal license in favor of Loyd and others, who are the owners of the Fabian ditch, and that the ground in Jenny’s fork, on which Loyd and others had the license to use the water, has been wholly worked out; and that the defendants require the water to mine their placer ground in Ottawa gulcli, and committed the injuries complained of by the plaintiffs in constructing a reservoir in the gulch above the mouth of Jenny’s fork.
The replication denies every allegation in the answer and alleges that the defendants are estopped from asserting the agreement “ for the reason that said defendants were present at the time and date of the purchase by plaintiffs of said ditch and water-right from their grantors, and did not notify these plaintiffs of
At the trial, sixteen special findings were submitted to the jury and the following facts were established by the verdict thereon : 1„ That the defendants or their grantors appropriated the water of Ottawa gulch prior to the time that Loyd and others constructed their ditch from this gulch to Jenny’s basin. 2. That the parties who constructed the Fabian ditch made the agreement with the defendants and other miners, which is contained in the answer. -3. That the plaintiffs did not have any notice of this agreement when they purchased the ditch of Loyd and others. 4. That the plaintiffs were first notified of this agreement in the summer of 1874. 5. That Loyd and others and the defendants and others were the parties to this agreement. 6. That it was under this agreement that the parties who constructed the Fabian ditch were permitted to use the water of Ottawa gulch through their ditch. 7. That the parties to the agreement owned, at the time it was made, claims numbered from thirty to thirty-seven inclusive in Ottawa gulch, and that other miners then owned claims numbered from thirty-eight to forty-one inclusive; that claims numbered from thirty to thirty-nine were helow the junction of Jenny’s fork with the gulch, and the claims numbered forty and forty-one were at and above the junction. 8. That the defendants were owners of claims in the gulch and mining there at and before the construction of the plaintiffs’ ditch, and that the defendants are miners and claim owners in the gulch, and the water of the gulch is necessary to mine successfully their ground. 9. That the defendants have mined their claims in this gulch since 1866. 10. That the plaintiffs hold and own their ditch by purchase from the original owners and constructors. 11. That it is necessary to reservoir the water in Ottawa gulch to work successfully the claims therein. 12. That a reservoir could be constructed at the junction of Jenny’s fork with Ottawa gulch.
No exceptions were taken to the findings of the jury, and each party moved for judgment upon the pleadings, evidence and findings. The court rendered a decree that the preliminary injunction be made perpetual, but reserved for the defendants the right to take the water flowing through plaintiff’s ditch below the mining ground of the plaintiffs in Jenny’s basin. The preliminary injunction restrained the defendants from diverting from the plaintiffs’ ditch the water flowing down Ottawa gulch.
The appellants claim that the respondents cannot obtain equitable relief under the pleadings, and that an action in the nature of ejectment would afford a legal remedy. The following cases .are cited in support of this position : Lewis v. Cocks, 23 Wall. 466; Raffetto v. Fiori, 50 Cal. 363; Felton v. Justice, 51 id. 529. In Lewis v. Cocks, supra, Cocks filed a bill in equity praying that the defendant might be decreed to execute a deed for two houses and lots on receiving the price paid for the same by the ■defendant. The court held that there was no fraud in the ease, or any other matter which is specially the subject of equitable jurisdiction ; that the bill was not the proper means to recover the possession of land of which Cocks was out of possession ; and that “ an action of ejectment is an adequate remedy.” In Raffetto v. Fiori, supra, an action of trespass was brought in May, 1813, to recover damages and obtain an injunction, and i.t was one of the findings that the defendants had been in the possession of the land since August, 1870. The court held that this action could not be maintained where the plaintiff is actually dis-seized of the land and the defendant is in the adverse possession thereof. In Felton v. Justice, supra, the complaint alleged that
In the case at bar, the appellants did not disturb the respondents in the possession of the Fabian ditch, but diverted the water which was an incident to the ditch. We are aware of some rules which are applicable alike to land and water, and that in a legal sense, property in a water-course is comprehended under the general name of land, and that a grant of land conveys to the grantee the water which flows naturally over the surface. But we have not seen any case in which the doctrine of the foregoing decisions, relating to the remedy for the recovery of the possession of land, has been applied to a controversy respecting the prior right to the use of water. On the contrary, many judgments in the courts of the States and Territories, in which the work of mining for the precious metals is pursued under the same conditions which exist in this Territory, have been entered and affirmed in actions in which the complaint was in substance the same as that under consideration and the equitable relief of an injunction has been granted in favor of a party who was not in the possession of the water .when the suit was commenced.
The appellant insists that the supreme court of California in the case of Felton v. Justice, supra, recognized the rule that the law which governs the right to the possession of land applies also to the right to the use of water. This is not our view of the principle which is upheld in the opinion in which the court says : 4‘ The purpose of this action is to enjoin the commission of trespasses upon lands alleged to be the property of plaintiffs. The plaintiffs allege that the defendant had entered upon the lands, and ousted and removed plaintiffs therefrom.” We think that the court, in using the term “lands,” referred to the rancho and -ditch thereon, and did not include the water-right. It must be
Mr. Tale, in considering remedies for the diversion of water.* says: “Actions for injuries to water-rights are threefold: 1. By an action for damages in using or diverting the water, which sounds only in damages, or in assumpsit for so much water used, under a contract, express or implied. 2. By an action for a perpetual injunction to restrain the further use of the water, upon the ground of irreparable injury. 3. By an action in the nature of a proceeding to abate a nuisance, when an impediment or obstruction has been created to prevent the flow of water in its natural course. The cases in our courts furnish numerous instances of actions of each description. * * * The injunction is but a provisional remedy, and but an incident to the action, or it may be the sole purpose of the bill.” Tale on Mining Claims and "Water-Rights, 213. This commentator has defined clearly the law upon this subject. In a majority of the cases that we have examined, the aggrieved party asks for damages and an injunction, but the allegations of the facts which are essential to secure the equitable relief are similar to those of the complaint in this ease. The omission or denial of the prayer for damages' does not affect the right to an injunction. In Tuolumne W. Co. v. Chapman, 8 Cal. 392, the complaint is the same as that of the respondents, and the judgment of the court below in overruling a demurrer thereto is afiirmed, and it is held that the “ continued diversion of water from a party entitled to it is such an irreparable injury as a court of equity will redress.” In Parke v. Kilham, 8 Cal. 77, it is held that (í a ditch to carry off water rightfully flowing to a mining claim is as much a nuisance as a dam to flood the premises.” These decisions' are based upon the well-settled principle that courts of equity will always interfere by injunction when irreparable injury will be caused by the obstruction of a water-course or the diversion of water. 2 Story’s
The appellants contend that they have been deprived of a trial by a jury of the right to the use of the water in controversy, and that the court below erred in submitting only the findings that it deemed proper, and basing its decree thereon. The conclusions that we have announced regarding the sufficiency of the complaint, the equitable character of this action, and the remedy of the respondents, determine these objections. This is a case in equity in which a jury trial cannot be claimed as a right by the parties. Kleinschmidt v. Dunphy, 1 Mon. 118. In Lake v. Tolles, infra, the ruling of the court below in refusing to try the issues by a jury was affirmed. The case of Gallagher v. Basey, supra, in which the court disregarded some of the special findings of the jury in rendering its decree, was appealed to the supreme court of the United States, and Mr. Justice Field, in the opinion affirming the judgment of this court, says: “If the remedy sought be equitable, the court is not bound to call a jury, and if
The next matter for our consideration is the effect of the agreement, which is referred to in the pleadings and findings, upon the rights of the appellants and respondents. Loyd and the other persons who constructed the Fabian ditch and were the grantors and predecessors in interest of the respondents, had the personal license of diverting and using the water of Ottawa gulch upon their mining claims in Jenny’s basin during the time that the appellants knd other miners did not need the same for the working of their ground in Ottawa gulch. No interest in land was thereby conveyed or created, and the agreement was valid between the parties, although it was not reduced to writing and put upon the records of the mining district or the proper county. Afterward, Loyd and his partners expended money and labor in digging their ditch and making other improvements which were necessary to mine their property in Jenny’s basin. By asking for and obtaining the privilege of using the water in controversy for this particular purpose under the foregoing conditions, Loyd and his associates recognized the prior appropriation thereof by the appellants. The legal relations of the parties were the same as those of landlord and tenant. The doctrine of the tenant’s estoppel would prevail against Loyd and his company, when they were in the possession of the water under the license, and the prior rights of the appellants could not be disputed. Bigelow on Estoppel (2d ed.), 359, 381, and cases there cited. But this privilege, which was acquired under the license or agreement, was limited strictly to the original parties, and could not be sold and transferred to the respondents by Loyd and the other licensees. 2 Am. L. C. (4th ed.) 736, and cases there cited ; Washb. on Ease. (2d ed.) 8; Browne on Statute of Frauds (2d ed.), § 22; Babcock v. Utter, 32 How. Pr. 439.
The following question 'is decisive of this case : Are the appellants estopped from claiming the water of Ottawa gulch, as against the respondents, by their conduct at the times when three deeds were executed and delivered by Loyd, Moss and Riley to the respondents ? The appellants are correct in their position that the replication fails to set forth all the facts which constitute an equitable estoppel. It does not allege that the respondents were influenced in buying the property of Loyd, Moss and Riley by the conduct of the appellants, or that the respondents had no convenient means of acquiring knowledge of the true state of the title to the water of Ottawa gulch. It therefore does not appear from this pleading that the respondents have been injured by any intended deception in the conduct of the appellants, or gross negligence on their part which amounts to 'constructive fraud. 1 Story’s Eq. Jur. (9th ed.), § 391, and cases there cited; Brant v. Virginia C. & I. Co., 93 U. S. 326, and cases there cited; Sharon v. Minnock, 6 Nev. 377; Bigelow on Estoppel (2d ed.), 437; Davis v. Davis, 26 Cal. 23. The appellants did not raise this question in the court below, and took no exception to the replication, and allowed evidence to be pro
The decree states that the equities of the case are in favor of the respondents, and the appellants insist that the judgment cannot be supported because there is no special finding upon the issue of estoppel. The decisions, which are relied on by the appellants, were made under the Code of Civil Procedure of the State of California, which changed the rule relating to implied findings of facts. Campbell v. Buckman, 49 Cal. 362; N. P. R. Co. v. Reynolds, 50 id. 90; Harris v. Burns, 51 id. 528. This action must be governed by the Civil Practice Act, approved January 12,1872, and we must presume, unless the contrary appears, that the court below found on this issue for the party for whom the judgment was entered. Ming v. Truett, 1 Mon. 322; Morse v. Swan, 2 id. 306; Ervin v. Collier, ante, 189.
The transcript contains the following evidence upon this point: We omit that which sustains the special findings of the juiy. The respondents bought some mining claims in Jenny’s basin and received their deeds from Pi ley, Moss and Loyd, which were dated, respectively, October 10, 1872, October 11, 1872, and September 21, 1873. The deeds described the ground “ with the water-right and ditches and other appurtenances thereunto belonging to the aforesaid mining ground.” Collins, one of the appellants, signed his name as a witness to the execution of the deeds by Riley and Moss, and Mayger, the other appellant, was a witness to the execution of the deed by Loyd, and, as the recorder of the mining district, placed upon the records the deeds from Riley and Moss. The appellants knew that these mining claims could not be worked successfully without the water of Ottawa gulch, and that the Fabian ditch and this water were included in the ditches and water-right mentioned in the deeds to the respondents. The deeds were drawn up by Mayger in the presence of Collins, who knew that the sale was being made, and the grantors and respondents consulted with Mayger respecting the contents of the deeds. Neither Collins nor Mayger informed the respondents of any claim by any persons to the water in dis
In Hale v. Skinner, 117 Mass. 474, Mr. Chief Justice Gray refers to “ the doctrine of courts of equity that a person witnessing or present at the execution of a conveyance of property by another is estopped afterward to set up title in himself.” Mr. Bigelow, in his work on Estoppel, says : “ Thus the witnessing of a deed to one’s own land, done knowingly, for a grantee in ignorance of the witness’s rights, will (at least in equity) estop the witness to set up against the grantee a claim to the land existing in the witness when the deed was executed.” Big-elow on Estoppel (2d ed.), 451, 471, and cases there cited. Mr. Story says in his Commentaries on Equity Jurisprudence: “ In many eases a man may innocently be silent. * * * But, in other cases, a man is bound to speak out; and his very silence becomes as expressive as if he had openly consented to what is said or done, and had become a party to the transaction. * * * So, if a man should stand by, and see another person, as grantor, execute a deed of conveyance of land belonging to himself, and, knowing the facts, should sign his name as a witness, he would in equity be bound by the conveyance.” Story’s Eq. Jur. (9th ed.), § 385. In Gregg v. Von Phul, 1 Wall. 274, Mr. Justice Davis says: l' No one is permitted to keep silent when he should speak, and thereby mislead another to his injury. If one has a claim against an estate and does not disclose it, but stands by and suffers the estate [to be] sold and improved, with knowledge
The application of these principles to the facts before us compels us to conclude that the appellants should have asserted their claim to the water of Ottawa gulch when the deeds were executed by Moss, Riley, and Loyd; and that their conduct and silence at that time estop them from speaking in this action against the respondents. The respondents could not buy from their grantors any title under the parol license, conferred by the appellants, and were induced to pay Moss, Riley and Loyd for what they did not own. The appellants acted with a full knowledge of their rights, when the respondents were in ignorance regarding them and without convenient means of acquiring information.
The judgment protects with a just discrimination the rights of the parties and is affirmed with costs.
Judgment affirmed.