113 P. 751 | Mont. | 1911
delivered the opinion of the court.
This action was brought by John A. Featherman and five other plaintiffs against appellant James McGowan, the respond
“First. Is not the claim of the respondent lost by failure to deraign title to the water right claimed by it?
“Second. Is not the claim of the respondent lost by reason of abandonment and nonuser?
“Third. Is not the claim of the respondent lost by reason of the statute of limitations?”
1. Flint creek flows north through Flint creek valley. The ditches of both appellant and respondent are taken from it on the west side. Respondent owns placer mines situated near the mouth of Henderson gulch, which opens into the valley from the west. A plat submitted with the transcript shows that the head of its ditch is some three or four miles above the mouth of the gulch. The country through which it is constructed is broken by ravines and gulches, which it is necessary to bridge with flumes. It appears that in November, 1868, Thomas Smith, one of the original defendants to this action, now dead, with six associates began the construction of the ditch to convey water to the placer mines mentioned above, then owned by them. It was finished in the following year. Mining operations were conducted there by these original owners until 1876 or 1877, when one Ferguson, and others associated with him, purchased the mines, with the ditch and water right. In the year 1878 they sold the property to a Chinaman by the name of Quong Lee. Four years later the latter sold to two other Chinamen, Buck Jim and You Hoy, who, having operated the property until 1888 or 1889, sold to Dominick Byrne. The respondent thereafter became his successor to an undivided three-fourths interest by mesne conveyances. It is not clear from the evidence whether any of the conveyances referred to, down to the time Byrne became the purchaser, were evidenced by any sort of
The contention made by counsel is that, since it appears that the conveyances by Smith and his associates, and by Ferguson and Quong Lee, under which Buck Jim and You Hoy claimed title, were by mere word of mouth and not in writing, the respondent has failed to connect itself with the original title of Smith and his associates, and therefore that its claim falls to the ground; in other words, these conveyances were void because within the statute of frauds. No objection was made at the trial, by appellant, to any of the evidence offered to establish these conveyances. It would seem that he ought not to be heard to make objection for the first time in this court; but, even so, such an objection would-not have been well made. Appellant was a stranger to all of these conveyances; nor has he, by anything that has occurred since, been brought into privity with any of the parties to them. Being a stranger, he cannot be heard to object to them. The right to question a contract on the ground stated is purely personal, and cannot be asserted by one who is neither a party nor a privy to it. (McDonald v. Lannen, 19 Mont. 78, 47 Pac. 648; Wood v. Lowney, 20 Mont. 273, 50 Pac. 794.) And this is declared by the courts generally to be the settled rule. (Book v. Justice Mining Co. (C. C.), 58 Fed. 106; Murray Hill Co. v. Havenor, 24 Utah, 73, 66 Pac. 762; Hill v. Groesbeck, 29 Colo. 161, 67 Pac. 167; Jackson v. Stanfield, 137 Ind. 592, 36 N. E. 345, 37 N. E. 14, 23 L. R. A. 588; Daum v. Conley, 27 Colo. 56, 59 Pac. 753; 20 Cyc. 306; Wood on Statute of Frauds, see. 538.)
In Jackson v. Stanfield, supra, in the opinion on rehearing, the court in stating the rule uses this apt language: “Parties to contracts and their privies can alone take advantage of the fact that a contract is invalid under the statute of frauds. Many forms of expression by this and other courts illustrate
It is true that in McDonald v. Lannen, supra, this court used expressions which would indicate that a different rule applies to mining claims and appurtenant rights from that which applies to mere possessory rights and improvements upon agricultural lands not held by formal entry. But we cannot see any substantial reason for the distinction. If the right to question the validity of a conveyance is a personal one, available only to the parties or their privies, it is none the less personal where the parties are dealing with property to which the seller holds the absolute fee. If strangers cannot object that the law has not been observed in the one ease, neither may they in the other. In Head v. Hale, 38 Mont. 302, 100 Pac. 222, this court recognized the rule stated in the text in Famham on Waters, sec. 670a, that one who is in possession of a water right originated by another cannot protect or defend it, unless he is in privity, by contract or otherwise, with the original owner. Nothing said in that case, however, is in any way inconsistent with the rule stated above.
The first query submitted by the appellant must, therefore, be answered in the negative.
2. The same answer must also be made to the second. Whether there has been an abandonment is a question of fact, to be determined by the acts and intention of the person against whom it is alleged. Mere lapse of time during which there is nonuser is not sufficient. The circumstances must be such as to justify an inference of intention to abandon; in other words, to leave the property to be taken by any other person who
3. There is no evidence in the record tending to show adverse use by the appellant. It does appear that no use of the water was made by any predecessor of respondent from 1888 to 1894, and that little effective use has been made of it since the latter date. But use of water does not begin to be adverse as against a prior appropriator, unless it results in a deprivation to such appropriator, or amounts to such an invasion of his rights as will enable him at any time during the statutory period to maintain an action against the adverse user. In Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 Pac. 334, it was said: “The use of the waters in the streams in this state is declared by the Con
In Talbott v. Butte City Water Co., 29 Mont. 17, 73 Pac. 1111, we find this language: ‘‘The plaintiffs had use for the water only for agricultural and mining purposes, and, when not so using it, the law required them to turn it back into the stream for the use of this defendant, or any other person or corporation which might have a right to use it. No use of water by a subsequent appropriator can be said to be adverse to the right of a prior appropriator, unless such use deprives the prior appropriator of it when he has actual need of it. To take the water when the prior appropriator has no use for'it invades no right of his, and cannot even initiate a claim adverse to him.” See, also, Smith v. Duff, 39 Mont. 374, 102 Pac. 981, 133 Am. St. Rep. 582, where these eases are cited with approval. We think they state the correct rule. The third query proposed by appellant must, therefore, also be answered in the negative.
4. But waiving aside all the foregoing considerations, it does not appear that the appellant is aggrieved in any way by the decree. The plat shows that whenever water has been diverted by the respondent or any of its predecessors, it has been returned to the body of the stream at some distance above the head of appellant’s ditch. Appellant does not show or claim that the quantity of water to which he is entitled has not always reached the head of his ditch whenever he has had occasion to use it.
These conclusions render it unnecessary to determine the questions of practice presented by respondent.
The judgment and order are affirmed.
Affirmed.