198 P. 748 | Mont. | 1921
prepared the opinion for the court.
This is an action in ejectment. Yerdict and judgment for defendant. Plaintiff appeals from the judgment and from an order overruling its motion for a new trial. The acts of defendant complained of appear in the statement.
At the times mentioned in the complaint plaintiff was the owner of certain mill sites and placer claims, or parts thereof, described in the complaint, including the Junction mill site, the French mill site, and the South Side placer. The defendant owned certain lands northwest of and adjoining the lands of plaintiff. At one time the Western Mine Enterprise Company owned all of the lands involved herein, and in 1897 it conveyed by deed to A. F. Graeter and others all or a part of the Junction mill site, the French mill site, and the South Side placer, with other lands. This deed contains the following reservations: “Excepting the lumber and material in the water flume connecting with the so-called Golden Leaf mill, and in the ore-bins and mill tram thereon, said lumber and material being the property of the Bannack Mining & Milling Company, and excepting and reserving to the said party of the first part the right of a roadway for wagons across the said premises to connect with the Golden Leaf mill; the right to discharge mill tailings upon the said premises from the operation of the said mill, and excepting and reserving any and all veins or lodes of quartz which may be found or which may be within or upon the said premises and the right to work and explore the same.” The grantees named in this deed in 1898 conveyed their interest to plaintiff. In 1906 the Western Mine Enterprise Company sold and conveyed all of its property which it had not theretofore sold to Graeter and his associates to Carlton H. Hand, who in turn sold it to the defendant
The defendant maintains that at the time of the sale to Graeter the flume and mill were in a workable condition, the witness stating: “We had been using the mill and conveying the water from the North Side Ditch down to the mill. At the exact time of the conveyance to Graeter * # * they would be in such a condition that a few dollars would have put them into operating condition. It would be just the ordinary work that would have to be done on a flume if you were to shut down in the fall, say, and start work in the spring.” This condition of the mill and flume is disputed by the plaintiff.
The defendant further maintains that the plaintiff, in dredging its ground, destroyed the flume and so changed the surface of the ground that it was impossible to ascertain the exact location of the original flume. Plaintiff also disputes this fact, and maintains that there was no flume there except in certain places.
Subsequently the Bannack Mining & Milling Company rebuilt the flume and, as maintained by defendant, on the same line of the original flume, as nearly as could be then ascertained. The flume so built was of practically the same size as the original flume. The plaintiff, however, claims that the new flume was in a new location and was larger than the old flume.
It is also quite generally held that, where there is a grant of land, with full covenants of warranty, without express reservations of easements, there can be no easement by implication, unless the easement is strictly one of necessity. (19 C. J. 920.)
“In a sense ho easement or quasi easement can well be abso^ lutely necessary to any possible enjoyment of property. The most that can be required is that it be, in addition to being apparent and continuous, essential to use and enjoyment of the premises as permanently improved at the time of the con
“The term ‘necessity’ is to be understood as meaning that there could be no other reasonable mode of enjoying the dominant tenement without the easement.” (Starrett v. Baudler, 181 Iowa, 965, 980, L. R. A. 1918B, 528, 165 N. W. 216; 19 C. J., supra.)
“The word ‘necessary’ is not to be.limited to absolute physical necessity; and a way over land of the grantor in a deed may pass as appurtenant to the land granted, although there are no insuperable physical obstacles to prevent access by another way, if such other way cannot be made without unreasonable labor and expense; and in determining this question, a jury may consider the comparative value of the land and the probable cost of such a way.” (Pettingill v. Porter, 8 Allen (90 Mass.), 1, 85 Am. Dec. 671; Carbrey v. Willis, 7 Allen (Mass.), 364, 83 Am. Dec. 68, 694.)
The Massachusetts court construes the law there strictly against implied easements, and it may be true, as stated by the New York court in Taylor v. Millard, 118 N. Y. 244, 6 L. R. A. 667, 23 N. E. 376, also Tiffany on Real Property, 2d ed. 1920, section 380, that it is good policy to discourage easements by implication, but this doctrine cannot be carried to the extent of depriving a party of his rights clearly established by the evidence in the particular case. It is also apparent, and as held by the authorities above citpd, that a distinction is to be made between the easement reserved for the benefit of the estate granted and for the benefit of a separate estate. A quite thorough discussion of this subject may be found in
“Sluice-boxes, flumes, hose, pipes, railway tracks, cars, blacksmith-shops, mills, and all other machinery or tools used in working or developing a mine, are to be deemed affixed to the mine.” (Sec. 4428, Rev. Codes.)
“A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way, or watercourse, or of a passage for light, air, or heat from or across the land of another.” (Sec. 4429, Rev. Codes.)
From the evidence in this case, this ditch and flume, penstock and tail-race were necessary appurtenances to this mill, and as such they were reserved by the Western Mine Enterprise Company.
Plaintiff also takes exception to the introduction of some evidence and the instructions of the court, but all of these were addressed either to showing the good faith of the defendant in its operations of this mill and the construction of the flume and the buildings, or to the theory adopted by the court that the flume, if necessary to the operation of the mill, was an appurtenance thereto.
The jury having found that the retort building did not encroach upon the territory of the plaintiff, and the penstock being a part of the flume, which the defendant had a right to maintain, and the pump-house, if it ever was an unlawful invasion of plaintiff’s rights, having been removed prior to the commencement of this action, and the defendant having the right to maintain the tail-race, the evidence relating to damages becomes immaterial, for:
We recommend that the judgment and order appealed from be affirmed.
For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Affirmed.