107 P. 821 | Mont. | 1910
delivered the opinion of the court.
This action was begun on January 9, 1906. It appears from the complaint that on April 17, 1889, one Frank Derosier appropriated 200 inches of the waters of a certain stream “known under the name of Edwards creek or'Chief creek, and is now known as Edwards creek, alias Chief creek, alias Derosier creek”; and that prior to the first day of May, 1887, the plaintiff appropriated “from the waters of said Edwards creek, alias Chief creek, alias Derosier creek 200 miners’ inches of the waters of said Edwards creek.” The plaintiff is now the owner of both of said water rights. He alleges that the defendant claims some right in and to the waters, which right is subject and subsequent to that of the plaintiff. The defendant answered, denying substantially all of the allegations of the complaint, on information and belief, and setting forth affirmatively that on the thirtieth day of October, 1892, he appropriated 200 inches of the waters of Derosier creek, “otherwise known as Edwards creek, Chief creek and Dry creek, which creek is the same creek as that mentioned in the complaint,” for the purpose of irrigating his land. It is further alleged in the answer that on the nineteenth day of June, 1896, the plaintiff Quirk began an action against the defendant for the purpose of determining their respective rights in the waters of Edwards creek, and that, “for the purpose of forever settling all differences and contentions of the parties to said suit in regard to the waters of Edwards creek,” they entered into an agreement by which the defendant released to the plaintiff his right to the use of the waters theretofore appropriated by him, during the month of
The cause was tried to the district court of Flathead county sitting with a jury. The following special findings were returned :
“(1) At the time of the commencement of this action did plaintiff have the right to use, by appropriation or otherwise, any of the waters of Edwards creek? Answer: Yes.
“(2) If you answer the last question in the affirmative, you may state how many inches? Answer: 160 inches.
“(3) On the twenty-sixth day of June, 1896, did the plaintiff have the right to use any of the waters of Edwards creek? Answer: Yes.
“ (4) If you answer the last question in the affirmative, you may state how many inches ? Answer: 130 inches.
“ (5) On the twenty-sixth day of June, 1896, did the defendant, George Rich, have the right to the use of any waters that in any way -reached the point where plaintiff took his waters from Edwards Creek ? Answer: Yes.
“(6) If you answer the last question in the affirmative, you may state how many inches ? Answer: Eighty inches.
“ (7) If you answer the fifth question in the affirmative, yon may state from what water or creek the said defendant owned said water? Answer: Edwards creek, alias Chief creek, alias Derosier creek, and tributaries known as Dry creek.
“(8) At the time the plaintiff and defendant entered into a contract, you may state whether or not they were contracting relative to the water of Edwards creek, or the branches thereof known as Dry creek? Answer: Both Edwards creek and Dry creek.
“ (9) At the time the parties entered into the contract did they intend the contract to apply to- Dry creek only, or did
“ (10) How many inches of the waters of Dry creek was the defendant entitled to at the time of the commencement of this action? Answer: 100 inches.
“ (11) If you answer the previous question, that the defendant was entitled to the use of a certain number of inches of the waters of Dry creek at the time of the commencement of this action, you may state whether or not his right thereto was superior or subject to the rights of the plaintiff thereto? Answer: Subject.
“(12) Have the plaintiff and defendant acted upon and complied with the terms of the agreement as set forth in defendant’s answer since the execution thereof? Answer: Plaintiff has not. Defendant has.
“(13) Did the defendant understand the written agreement as set forth in his answer, according to the terms thereof? Answer: Yes.
“ (14) Did the plaintiff understand the agreement set forth in defendant’s answer, according to the terms thereof? Answer: Yes.”
The court, over objection of the plaintiff, entered a decree which, after reciting the proceedings had, continues: “The court being duly advised in the premises, it is hereby ordered, adjudged and decreed that the said plaintiff, Thomas Quirk, is entitled to the prior right as against the defendant, George Rich, to the use of all of the waters of Edwards creek and Dry creek ■during the month of June of each and every year; that the defendant, George Rich, is entitled to the prior right, as against the plaintiff, Thomas Quirk, to the use of all of the waters of Edwards creek and Dry creek except during the month of June of each and every year.” The parties are then enjoined from interfering with each other in the rights decreed. The plaintiff has appealed from an order denying him a new trial.
There is some suggestion in the brief of counsel for the appellant that the contract in question involves a latent ambiguity.
“This agreement made and concluded this twenty-sixth day of June, 1896, between Thomas Quirk, the party of the first part, and George Rich, the party of the second part, both of Tobacco Plains, Montana, Witnesseth:
“Whereas, a suit at law has been begun and a complaint filed in the district court of the eleventh judicial district of the state of Montana, for the county of Flathead, by the party of the first part against the party of the second- part, to determine the respective rights of the parties hereto, to the use and possession of the waters of Edwards creek, otherwise known as Dry creek, and Chief creek and Derosier creek, in Flathead county, Montana, and fully described in said complaint:
“Now, in consideration of the second party yielding up the-possession and use of all said waters described above, and in first party’s complaint, to the party of the first part, during the month of June, 1896, and during every month of June each and every year hereafter, said first party hereby agrees to dismiss the said suit so commenced in said district court and to yield up to said second party the use and possession of all said waters aforesaid during the entire year of 1896 and each and every
“And the second party hereto, in consideration of first party yielding up the use and possession of all said waters aforesaid during the whole of each and every year beginning with the year 1896, to the party of the second part, except during said months of June, hereby agrees to yield up to first party all the waters aforesaid, during said month of June, 1896, and for eaeh and every month of June hereafter.
“It being the intention of the parties hereto that the first party has the right to the use and possession of all the waters aforesaid during the entire months of June beginning June, 1896, and second party has the right to the use and possession of all the waters aforesaid for the entire year beginning with the year 1896, except during the month of June. And this agreement is intended to be perpetual and binds the parties hereto, their heirs, executors, administrators and assigns.
“Witness our hands and seals this 26th of June, 1896, in duplicate.
“Thomas Quirk. [Seal.]
“George Rich. [Seal.]”
In the complaint filed on June 19, 1906, the "plaintiff alleged that he was entitled to use 200 inches of “Edwards creek, alias Chief creek, alias Derosier creek,” and that the defendant had wrongfully and unlawfully “diverted the water of said creek from the said ditches by means of another ditch which intersected said Edwards creek.” The relief prayed for was that the defendant be enjoined from in any manner “diverting the said waters of said Edwards creek, alias Chief creek, alias Derosier creek.”
J. B. Gibson, a civil engineer, testified for the plaintiff that “Dry creek is usually dry in June, July, August, September and October, and all the rest of the year except in excessive rains.”
The defendant testified: “I was never interfered with in the use of water as originally appropriated from what is denomi
J. F. Duffy, an attorney at law, testified: “At the time of the commencement of this (1896) action, I examined the records, but don’t distinctly remember examining the location notice of George Eich. I took my information from my client, and at the time made copies and notes of the action.”
C. H. Foot, also an attorney for the plaintiff in the 1896 action, testified: “Mr. Duffy was uncertain as to the true name
Maurice Quirk, a brother of the plaintiff, testified that he heard a conversation between the parties subsequent to the first conversation had between them. He said: “There appeared to-be a dispute between them as to how long they should have the water of Dry creek. George Rich would give the water of Dry creek during the month of June, except a week, and that seemed to be the difference between them.” This conversation was denied by Rich.
The plaintiff testified: “I remember entering into the agreement with Mr. Rich. I heard his testimony. It is a good deal as Mr. Rich stated. I commenced an action. This Dry creek was the cause of the lawsuit. After the commencement of the action, Mr. Rich came to me and asked me if we couldn’t settle the matter out of court, and I told him we could, and we talked the matter over once in particular; the first time we spoke of it down in the field, and I made a proposition and he made one. I proposed if he would allow me the waters during the month of June, I could go over the ground pretty well with it during that time, and I would allow him the water before and after for the balance of the year; and he tried to get me to allow him the use of the water in the firs-t week of June, or the last week -of June, and I wouldn’t consent to that, and it hung fire with my kind of objection to that proposition for a while, and a few days after we spoke of the matter again. Maurice was present the second time we spoke of it, and it was about drawing up a contract, and we decided on the terms. It was one agreement from 'first to last, and we entered into the agreement as we started out: that I should use the waters during the whole month of June, and he was to take them the balance of the
The jury found that at the time the parties entered into the contract they intended that the same should apply to Edwards creek proper as well as to Dry creek, and that they were contracting relative to the waters of both Edwards creek and Dry Creek. We think there is substantial testimony upon which to base these findings. While it is apparent from the record that in June, 1896, the defendant had no rights in the waters of either Dry creek or the main stream, which were not subsequent in point of time to those of plaintiff, still it must be remembered that the parties were engaged in litigation, and that, if what Rich says is true, the plaintiff was very anxious to insure himself the use of all the waters of the stream. While it is true that Gibson testifies that Dry creek carries no water in June, this is probably a mistake, for the reason that both the parties to the action testify, in effect, that June is one of the high-water months on the creek, if not the month when the same carries the greatest volume of water. There is no question, under the testimony, that the plaintiff was anxious to have all of the waters of Dry creek during the month of June; and it also appears that the defendant contributed toward the cost of the 1896 lawsuit. On the part of the defendant it is strenuously insisted that the fact that the plaintiff sought in 1896 to
It is contended, on the part of appellant, that the decree is too broad, in that it prevents him from using any of the waters of Edwards creek during eleven months of the year. We think his position in this regard is well taken. Confessedly, the defendant bases his claim to the use of any of the waters of the main stream, not upon his original appropriation of the waters of Dry creek or upon any subsequent appropriation, but upon the contract of June 26th. This being true, we are clearly of opinion that the contract must be construed with reference to the situation of the parties at the time. We do not think that either party will be justified in claiming that he had a right, by virtue of the contract, to increase his acreage after the date thereof, so as to use more water than he was actually, beneficially
Reversed and remanded.