31 Mont. 74 | Mont. | 1904
delivered the opinion of the court.
This action was brought to determine plaintiff’s right to the use of 100 inches of water in Cotton Wood creek, in Gallatin county, Montana, together with a certain ditch conveying the same to and upon plaintiff’s land, to-wit, the northwest quarter of section 20, township 3 south, of range 5 east of the Montana meridian. The defendant Tenor a Herron is the owner of the southwest quarter of section 17 of the same township, and the defendant Walter Buzard is the owner of the northwest quarter of the same section. William Herron, the deceased husband of Tenora Herron, in 1878 made a timber culture entry of plaintiff’s land. This claim he relinquished in 1881. In 18S2 he made a desert entry of it, which was, upon relinquishment by him, canceled by the department in 1885. On the same day Joseph Herron, a brother, made a declaratory statement for it as a pre-emption claim, and finally secured a patent by cash entry in 1887. In 1889 Joseph Herron conveyed it to his brother William Herron by warranty deed, “together with all tenements, hereditaments, appurtenances, water rights and water ditches to the same belonging, and all the estate, title interest, claim or demand of said party of the first part therein.” By a similar deed William Herron and his wife, a few days before the death of the former, in 1891, reconveyed to Joseph Herron. In 1892 Joseph Herron and wife conveyed to one John Hays.
In the spring of 1882 AAhlliam Herron constructed a ditch from Cotton Wood creek to and over all these lands. The creek runs in a northwesterly direction through the southwest quarter of section 17. Host of this quarter section and also of the land of the plaintiff is upon the bench, and, in order to convey -water to this portion of it, the ditch was constructed from a point on the creek some distance above, and passes almost entirely around the plaintiff’s land in such a way as to make it convenient to irri
The complaint alleges, in substance, that the water right in question, to the amount of 100 inches, together with the ditch constructed by William Herron in 1882, belongs to plaintiff as an appurtenance to his land; that the water is necessary to make the land productive; and that it has been continuously used for agricultural purposes by the plaintiff and his grantors since its acquisition by the said Herron. It is further alleged that the defendants assert some interest therein adverse to the plaintiff; that in July, 1901, without right, they diverted it away from the ditches of the plaintiff and deprived him of the use of it, and that they threaten to continue this diversion^ to the irreparable injury of the plaintiff.
The defendants filed separate answers denying that the ditch and water right claimed by the plaintiff are or ever were appurtenant to the lands of the plaintiff, or that the plaintiff or his grantors or predecessors in interest ever used the ditch in con
The court found the issues for the defendants, and entered judgment accordingly. From the judgment and an order denying' him a new trial, plaintiff has appealed.
Plaintiff seeks a reversal of the judgment upon the grounds (1) that the evidence does not support the findings; (2) that the findings do not support the judgment, and (3) that the court erred to his prejudice in the admission of certain evidence.
The controversy between the parties is indicated by the synopsis of the pleadings, and presents the sole question: Did the interest claimed by plaintiff in the Herron ditch and Hunter water right pass to the plaintiff under the conveyances from Joseph Herron and his grantees to the plaintiff as an appurtenance to his land ?
William Herron was never vested with the legal title to this land until he took under the conveyance from his brother Joseph. He then took it with such rights appurtenant thereto, and only-such, as Joseph had. Joseph had no right in the water whatever, for there is nothing in the evidence tending to show that he had obtained any interest theretofore by virtue of any contract or agreement made with William at the time of his settlement upon the land or at any time thereafter. William abandoned his inchoate rights in the land in the year 1885. Put the presumption, if any, which might otherwise be indulged in, that
Section 1882 of the Oivil Code recognizes the right of an appropriator or owner of a water right to change the place of diversion, as well as the use and the place of use. It therefore does not follow that, because water has been appropriated for a particular use, it forever thereafter must be applied to that use. “The legal title to the land upon which a water right acquired by appropriation made on the public domain is used or intended to be used in no wise affects the appropriator’s title to the water right, for the bona fide intention which is required of an appropriator to apply the water to some useful purpose may comprehend a use upon lands and possessions other than those of the appropriator, or a use for purposes other than those for which the right was originally appropriated. Section 1882, Civil Code; Nevada Ditch Co. v. Bennett, 30 Ore. 59, 45 Pac. 412, 60 Am. St. Rep. 777.” (Smith v. Denniff, 24 Mont. at page 29, and page 401, 50 Pac., 81 Am. St. Rep. 408.)
The right of the plaintiff must therefore depend upon the interpretation to be -given to the deeds furnishing the chain of title from William Herron to the plaintiff, for, as we have seen, the use of the water had not become appurtenant to plaintiff’s land prior to the date of Joseph Herron’s deed to William Herron. This deed purported to convey, and did convey, all rights which were appurtenant. (Sweetland v. Olsen, 11 Mont. 27, 27 Pac. 339; Tucker v. Jones, 8 Mont. 225, 19 Pac. 571; Kimpton v. Jubilee Placer Mining Co., 16 Mont. 379, 41 Pac. 137, 42 Pac. 102.) But the right in question, being the exclusive property of William Herron, -was not affected by it.
What rights, therefore, does the plaintiff appear to have acquired in the water under that deed, in the light of the facts as they then existed, and the behavior of the parties with reference to it down to the commencement of this action ? This deed does not, nor does any of the others following it, describe any particular right. They only purport to convey such rights as were appurtenant. The evidence tends to show that William Herron used the water upon the Joseph Herron (the plaintiff’s) land
Without attempting to analyze the evidence and to state in detail our reasons for this conclusion, rve shall briefly refer to one fact which seems to us significant. In 1890, just after the deed executed by Joseph Herron to his brother William, the latter, with others, brought an action to have the relative priorities to the rights in the water of Cotton Wood creek settled and determined. This action resulted in a decree under which William Herron was adjudged to have the' title to the use of 100 inches by an appropriation made in 1870, and 100 inches by an appropriation made in 1878. Thereupon the parties employed a ditch tender to distribute the water during the irrigating season in accordance with the terms of the decree. This ditch tender, was a witness, and testified that, from the date of the decree until the bringing of this action, he had distributed the water from year to year until the bringing of this action, awarding the 200 inches in controversy here to William Herron and to the defendants as his successors, and that the use made of any part of it by the plaintiff or his tenants, or any of his predecessors under the deeds subsequent to William Herron’s deed to Joseph, was by permission of William Herron or the defendants. This exclusive use of the water by the defendants during all the years from 1891 to 1901, when this action was commenced, together with the fact that in the meantime neither
The findings of the court upon the evidence are very full. Some of them are immaterial. This fact, however, does not impair the effect of such as are material and upon the issue actually involved in the controversy. The findings upon the material issue fully sustain the judgment.
The particular items of evidence of the admission of. which complaint is made are alleged-declarations made by William Herron, at the time he executed the deed to Joseph, that there was no water right appurtenant to the land conveyed, and that he did not intend to convey any water right, and also certain testimony by Joseph Herron that he never had or claimed any interest in the Hunter water right. It is urged that this testimony was incompetent and prejudicial to the plaintiff. Without pausing to determine the question whether the evidence was in fact incompetent, but assuming it to be so, we do not think its admission sufficient to warrant, a reversal of the judgment. This is an equity case, and was tried by the court sitting without a jury. In such case the result will not be overturned merely on the ground that some irrelevant or incompetent evidence was admitted at the hearing. In such case, if the incompetent evidence is so .unimportant and trifling, as compared with the competent evidence, introduced and considered, that it^ is apparent that the result reached was probably not based upon the incompetent evidence, it will be presumed that such evidence was disregarded by the court when it came to make its findings. (Cobban v. Hecklen, 27 Mont. 245, 70 Pac. 805.) But, conceding that the trial court was probably influenced in its conclusions by the evidence alleged to be incompetent, yet this court is authorized by the Act of the Second Extraordinary Session of 1903 (Laws Second Extra. Sess. 1903, Chapter I) to review and determine all the questions of fact as well as of law in equity cases, and to render such judgment therein as the cir
The judgment and order are affirmed.
Affirmed.
Rehearing denied.