120 P. 792 | Mont. | 1912
delivered the opinion of the court.
Some time prior to 1871 a ditch was constructed from Middle creek, in Gallatin county, and used for conveying water for irrigation and other useful purposes. The ditch was then known as the Newell ditch, and was used by Bean, Cline, Ferguson, McCormick, Bindley and Jewett, who owned or occupied ranches along the course of the ditch. The ditch headed in Middle creek south of these ranches and the fall of the country is to the north. About 1871 Adam C. Reeves settled on lands immediately north of these ranches, made homestead entry, and also inclosed two government forty-acre tracts adjoining his homestead on the north. Shortly afterward Reeves obtained from McCormick some sort of right to enlarge, extend and use the Newell ditch, and he did extend the main ditch to his homestead, and then, by constructing two prongs or branches, extended it to the two government forties which he had inclosed. After this work was completed, and about 1878, Stephen D. Parsons, Arthur E. Blaine and J. H. Nixon settled on lands to the north and northwest of Reeves, and obtained from Reeves a right of some character to extend the two prongs or branches of the old Newell ditch across the two government forties which Reeves had inclosed, so as to convey water to their ranches. About this time the Newell ditch came to be known as the Parsons-Grove ditch. During those early days all the claimants in the ditch used water from Middle creek, but their use was made uncertain by the claim of prior appropriators. About 1892 the Farmers’ canal was constructed which conveyed water from the West Gallatin river in a northeasterly direction over Middle creek and across the old Newell ditch. Thereafter the users of
The plaintiffs claim rights by prescription to use the two prongs or branches which constitute an extension of the Newell or Parsons-Grove ditch to convey to their ranches 300 inches of water — 150 inches for each — for irrigation and other useful purposes; and in their complaint they allege that for more than thirty years they and their predecessors in interest have been in the open, notorious, continuous, uninterrupted and adverse occupation, use and enjoyment of these ditches through the lands of the defendant Baxter under claims of right. Stripped of other allegations not material upon this appeal, the foregoing briefly presents the plaintiffs’ claims which are disputed by the defendant Baxter in his answer. One of the principal contentions made by counsel for appellant Baxter arises over the question: What character of right did Parsons and Blaine, the predecessors of these plaintiffs, acquire from Reeves in 1878, when
The trial court found that Reeves intended to convey by oral grant an easement or ditch right over each of the two forties. Appellant contends that the transaction between Reeves on the •one part, and Parsons and Blaine on the other, amounted to nothing more than a revocable license. If the trial court’s finding is justified by the evidence, then it- follows that although the
Reeves testified upon the trial of this case, in effect, that he gave to Parsons, Blaine and Nixon permission to use the two ditches and extend them so as to convey water upon the Parsons, Blaine and Nixon ranches. He further testified: “As near as I can remember, Parsons, Blaine, Nixon and myself claimed equal rights in the ditch, and worked so as to accommodate each other as far as possible. # * * I remember that Parsons, Nixon and Blaine were always considered members of the Newell or Parsons-Grove Ditch Company. * * * There is no doubt in
Plaintiffs also offered in evidence a water right declaration, executed and recorded by Reeves, Blaine, Parsons, Nixon, Huffine and six others, each claiming 100 inches of water from Middle creek through the “old Newell ditch.” While the evidence of
Some contention is made that the use of these ditches could not have been adverse, because Wilson, a predecessor of plaintiff McDonnell and plaintiff Tedrick, during certain seasons leased water from defendant Baxter and conveyed it through these ditches after Baxter became the owner of the two forty-acre tracts above mentioned. This contention is apparently based upon the assumption that the lessee of water must be also a lessee of the' ditch which conveys it, or, in other words, that a water ditch cannot be appurtenant to land unless the land owner also has a valid water right. That this assumption is entirely
In 1 Wiel on Water Rights in the Western States, section 280, the author says: ‘ ‘ The water right is entirely distinct from the right to the ditch, canal or other structure in which the water is conveyed. The latter is an easement over land. The former is an incorporeal hereditament sui generis, in the flow and use of the stream as a natural resource, and not an easement. The water right and ditch right may be conveyed separately, or the one may exist without the other. An abandonment of one does not necessarily include abandonment of the other. One may, however, be appurtenant to the other.” And in sections 455 and 456, where the same subject is treated more in detail, many examples are given to illustrate the doctrine, and numerous cases are cited which fully support the text.
The fact, then, that Wilson and Tedrick rented water for irrigation from defendant Baxter, while it made them Baxter’s tenants as to the water right, did not reflect at all upon the question of ownership of the ditches through which the water was conveyed. And if these ditches were actually used for the prescribed period, and the use was characterized by all the attendant circumstances which constituted it adverse, open, exclusive, and under claim of right, title by prescription resulted even though the claimants to the easements never owned water rights but had to depend for their use of the ditches upon water leased or otherwise acquired from year to year.
With the disposition of this contention many other assignments made by counsel for appellant fall of their own weight; among others, that the abandonment of the Middle creek water
Objection was made to the introduction in evidence of the deed-from Blaine to Tedrick. The deed conveyed the land with the appurtenances, but does not mention specially this claimed ditch right. However, if at the time the deed was executed and
Objection was also made to the admission of evidence touching plaintiff McDonnell’s ownership of the property claimed by him. It appears that in 1906 McDonnell entered into a contract with W. W. Wylie to purchase the lands now claimed by McDonnell; that a part of the purchase price was paid and notes given for the balance, and that final payment is not due until January 1, 1915. The transaction was evidenced by a contract in writing. • On the same day Wylie and his wife executed a warranty deed to McDonnell, and this deed was placed in escrow, its delivery to
In tracing his title from Parsons, the original patentee, plaintiff McDonnell offered in evidence a deed from Parsons to Wilson. This deed purported to convey the land now claimed by McDonnell, together with the appurtenances, water rights and water ditches belonging to the same, “subject to a certain contract with the Gallatin Canal Company.” The contract to
Complaint is made of the finding of the trial court as to the extent of the use of these ditches prior to 1892. To our minds this is immaterial; for if plaintiffs could prove rights in the ditches at all, they could rely upon the use made by them and their predecessors between 1892 and the commencement of this action, and might have ignored the conditions prevailing prior to. 1892, except so far as it was necessary to show that the use did not originate in a mere revocable license.
We agree with counsel for appellant in his statement of the general rule that an easement by prescription is to be confined
Error is predicated upon the order of the court overruling defendant Baxter’s motion to tax costs. On November 12 the trial court announced orally its determination upon this ease. On November 15 findings of fact and conclusions of law in writing were made and filed. On November 21 plaintiffs served their memorandum of costs. It is now insisted that the memorandum was not filed within five days as required by section 7170, Revised Codes; and the question arises: Shall the five days be computed from the date upon which the court orally announced its decision, or from the date upon which the written findings and conclusions were filed 1
There is a sharp conflict in the evidence as to the extent and character of the use made of these ditches over the Baxter land by the plaintiffs and their predecessors in interest. But under the rule adopted in this state, appellant has the burden of showing
While we have carefully reviewed all assignments made by counsel for appellant, we have confined our remarks to such questions only as appear to us of most importance.
'Affirmed.