20 Mont. 533 | Mont. | 1898
These two appeals were argued together, and by agreement the testimony in case No. 1,175 is to be considered in No. 1,184. They will therefore be disposed of in this one opinion.
They are both actions for injunctions. In case No. 1,175, plaintiff, the Montana Ore Purchasing Company, had defendant Boston & Montana Consolidated Copper & Silver Mining Company enjoined from interfering with plaintiff in constructing an underground pipe line across certain ground belonging to defendants, and from constructing a box flume
In case No. 1,184, the Butte & Boston Consolidated Mining Company, as plaintiff, enjoined the defendant the Montana Ore' Purchasing Company from laying pipe for its own use across the same premises involved in case No. 1,175. In this case the court, upon the hearing, • dissolved the injunction, from which order plaintiff therein appeals.
The respective parties are mining corporations, operating mining and smelting works, the successful conduct of which requires quantities of water. The Butte & Boston Consolidated Mining Company is the owner of the ground over which this controversy arose. But on November 16, 1892, the predecessor in interest of the defendants entered into an agreement and lease with one F. A. Heinze, plaintiff’s predecessor in interest, wherein Heinze leased a certain concentrator and smelting plant for a period of years. These works have been used since such time.
In the lease and agreement last referred to, there was the following provision: “It is also agreed that the said lessee shall have the right to flood and store water upon any of the ground of the party of the first part lying east of the embankment of the north leg of the Y of the Northern Pacific Railway, as now constructed; and also the right to dump ‘tailings’ from any and all works erected on the leased premises by the second party on to any ground of the party of the first part east of the Montana Union Railway Company’s tracks and north of the embankment of the Northern Pacific Railway Company above mentioned, to wit, about the place where the ‘tailings’ from the concentrator of the Boston & Montana Consolidated Copper & Silver Mining Company’s lower works are now being deposited; it being the intention of the parties hereto that the rights of storing water and dumping tailings and all rights of any kind mentioned in this indenture are to and shall belong to said second party under any extension of this lease. ’ ’
On July 2, 1892, the Northern Pacific Railroad Company leased to the predecessors of the plaintiff herein its right of way on the east side of its main track as the same was then located upon certain premises, the portion leased extending from the Y connection, as shown upon a plat referred to in the lease, to a connection with the Montana Union Railroad, lying to the north of the said Y connection, as marked upon such plat. The railroad company in the lease granted the plaintiff?s predecessors the right to use its embankment, upon which its railroad had been constructed, to serve as a dam for the purpose of storing water upon the right of way so leased. The plats offered for examination by the court show that the tract of land involved, and upon which the plaintiff had the right to flood and store water, lies between the roadbed of the Northern Pacific Railway Company on the one side and the hill on the other, and is part of a large tract of land desig
It is conceded that since the original grants to it the plaintiff has used a portion of the ground within the limits of the right of way and along the embankment of the railroad company, has flooded the same, and stored water thereon. It is stated by counsel that the water so stored came from Silver Bow creek.
About July 11, 1897, the plaintiff, claiming certain rights to the use of some of the waters of a stream in Park canyon, a creek in the vicinity of the water already stored, dug a ditch across the southeasterly part of mineral application No. 685, and attempted to bury boxes therein to conduct such newly acquired and additional waters from Park canyon over to the storage basin. The distance from the point of plaintiff’s entry upon mineral application No. 685 to the water already stored was about 1,100 feet. In plain words, plaintiff the Montana Ore Purchasing Company wanted more water for its concentrator, and was attempting to prepare to convey an increased supply across lands of the Butte & Boston Mining Company, when they were enjoined in this proceeding. Plaintiff had, with the railroad company’s consent, increased the height of the railroad embankment referred to, which operated as a dam, some time prior to the attempt just mentioned, so that it had increased its storage capacity before it undertook to increase its water supply in the manner indicated.
By these several actions the question for decision now arises upon the provision of the agreement and lease, heretofore quoted, between defendants and plaintiff’s predecessors in interest. It is argued by plaintiff that it is the owner by grant of an easement in the land of defendant, and that it has a right to such an occupancy and use of the land across which it proposed to lay its water boxes as will enable it to enjoy the easement. It is insisted that the grant of a right to flood and store water east of the Y of the north leg of the Northern Pacific Railroad is a grant sufficiently large to enable
The right to flood and store water which the plaintiff enjoys is an easement. As the owner of this estate, plaintiff has a right over the land of the defendant. The estate of the plaintiff is a dominant one; that of the defendant a servient one. Let us grant, for present purposes, that the enjoyment of the easement was not confined to any portion of the premises described in the deed, and that plaintiff could flood and store Avater upon the whole thereof, yet, conceding all these things to be true, it does not follow therefrom that a grant of a right to flood and store water even upon the whole tract described necessarily carried with it the further right to lay pipes across the land of the defendant, by means of which the water to be flooded and stored was to be conveyed, where the pipes or boxes were not necessary or in use at or about the time the easement was granted. Giving full force to the doctrine as laid down by Washburn on Easements, page 42, that “the grant of a thing carries all things as included without which the thing granted cannot be enjoyed;” still, as further held by that author, the principle is subject to limitations “by which the things granted are understood to be things incident and directly necessary to the thing granted.” It is not claimed that any easement to convey water to the land existed as in use at the time of the grant except from certain sources other than the ones now sought to be utilized. In making the grant the defendants’ predecessors in interest did not undertake to enlarge it so as to include a right to dig up the soil and lay pipes therein. All they did was to specify what the grant was, — to name the purposes and give its extent and direction. Therefore, unless the proposed use of the de
In Lyman v. Arnold, 5 Mason, 195, Fed. Cas. No. 8 626, Story, J., said : £ ‘There may be many conveniences which yet do not pass as incidents to a grant. When the parties-make their contracts, it is their duty to provide for such conveniences. When the law is called upon to interpret their acts, it has nothing to do with such matters. It can only act upon necessary incidents or implications. ’ ’
In Jennison v. Walker, 11 Gray 423, the defendant relaid pipes for the conveyance of certain water through the land of plaintiff, not in the line or direction in which certain logs were originally placed after a deed granting the easement was made, but in a different direction, occupying another portion of the land belonging to the plaintiff. It was held that defendant gained no such right under the grant of the easement, the court saying that there was no grant of a light to construct more than one passage for water, nor to change the direction of the one first constructed, at the pleasure of the-grantee.
So, in this case, doubtless, it would be a less expensive method of getting water into the storage basin of the plaintiff herein to run its pipe line across the land of defendants than to condemn the way selected or to find another; but it is by no means apparent that the necessity exists for the plaintiff to select a route which requires it to dig trenches through the defendants’ land.
Onthank v. Railroad Co., 71 N. Y. 194, was an action of trespass. It appeared that one Brown, whose farm adjoined the plaintiff’s, executed to a railroad company a deed granting to it and its successors and assigns forever the right to enter upon his land, to build and maintain a reservoir for water, and to lay down and maintain an iron pipe or conductor to carry the water from said reservoir to the water tank at Portland station, and also a right to build and maintain ditches to conduct the water to the reservoir. The plaintiff, who knew of the contents of the deed of Brown, executed to the same railroad company a deed, granting it a right to enter upon his land for the purpose of laying down and keeping in repair an iron pipe to carry water to the water tank near the Portland station. The defendant succeeded to the rights of the grantee in those deeds. It appeared that there was a spring at the time of the granting of the deeds on Brown’s land, which flowed over the land of plaintiff ’ s. The water was collected, and a two-inch pipe was laid by the grantee from the reservoir across Brown’s land to the Portland station. Eight years after this
The reasoning of these cases confirms us in the belief that the acts of the parties and the use of the easement granted for flooding and storage purposes, when considered for the purpose of arriving at the intention of the parties to the deed in question, excluded from the easement granted a right to lay pipes to conduct water across the land of the defendant, except such as existed at and about the time of the execution bf the grant itself. (See, also, Turnbull v. Rivers, 3 McCord, 131.)
Upon this branch of the case we think the District Court erred in refusing to dissolve the injunction.
2. We next pass to the contention of appellants that the court erred in refusing to dissolve the injunction whereby the respondents were prohibited from putting, a flume through the railroad embankment at a point where such embankment was used as a dam to hold plaintiff’s stored water.
In presenting their side of this feature of the controversy, the appellants lay great stress upon the character of the rights leased by the railroad company to the plaintiff, whereby the said railroad company gave plaintiff a right to use its bank
It appeared on the hearing that the railroad company, under an agreement with plaintiff, and at plaintiff’s expense, increased the height of its embankment, which constituted the dam or west side of the storage basin of plaintiff’s, the object of this increase in height having been to enable plaintiff to raise the height of the dam lying east thereof so as to store more water. Of this the appellants also complain. But, in our opinion, the railroad company, under the grant to it, clearly had a right to maintain its roadbed and to raise or lower the height thereof as its necessary convenience demanded, subject always to the reserved rights of the deed. Furthermore, the plaintiff had a right by grant from defendants to flood and store water east of the embankment of the company, because such embankment is the one upon which the north leg of its Y rests. Now, if the appellants are not seeking to avail themselves of some right reserved to them in their grant to the railroad company (and they are not), and if the plaintiff is strictly in the enjoyment of merely the right granted to it to flood and store water east of the embankment (as it is), how can these appellants claim they are injured by the exercise of that right because plaintiff avails itself of an embankment constructed for a roadbed, when such construction was proper, and under their own authority or grant ? Moreover, the railroad company is not a party to this suit, and, so long as plaintiff has not exceeded any rights granted to it by appellants, they cannot ask the court in this proceeding to determine the precise extent of the railroad company’s rights.
But we can rest our decision of this matter upon another point. It evidently satisfactorily appeared to the lower court
It is therefore ordered that in case No. 1,175 the order of the District Court refusing to restrain the Montana Ore Purchasing Company from laying a pipe, or from constructing and maintaining a ditch or flume upon and over that parcel of the ground designated as “Mineral Application No. 685,” be and the same is hereby reversed at the cost of respondent.
Reversed.
And it is further ordered that the order of the court refusing to dissolve the injunction restraining the Boston & Montana Consolidated Copper & Silver Mining Company, and the Butte & Boston Consolidated Mining Company, Frank Klepetko, C. S. Batterman and Robert White, from interfering with, breaking or destroying that certain embankment underneath and along the north branch or spur of the Northern Pacific Railroad Company, westerly from mineral application No. 685, and from making any openings through said embankment for the purpose of placing a flume therein, be, and the same is hereby affirmed, at the costs of appellants.
Affirmed:
The order of the District Court dissolving the injunction in case No. 1184 is reversed.
Reversed.
It is further ordered that the causes be remanded with directions to proceed in accordance with the views herein expressed.