Barkley v. Tieleke

• Decision Date: 31 January 1874
• Citation: 2 Mont. 59
• Parties: BARKLEY, appellant, v. TIELEKE, respondent.
• Court: Montana Supreme Court

2 Mont. 59

BARKLEY, appellant,

v.TIELEKE, respondent.

Supreme Court of the Territory of Montana.

January Term, 1874.

Appeal from First District, Jefferson County.

THE judgment in this action was rendered by SERVIS, J., who tried the cause without a jury. The opinion refers to the following sections of the act relating to “conveyances of realty.” “Every conveyance in writing, whereby any real estate is conveyed, or may be affected, shall be acknowledged or proved and certified in the manner hereinafter provided.” Cod. Sts. 396, § 3. “The term ‘real estate,’ as used in this act, shall be construed as co-extensive in meaning with lands, tenements, hereditaments, and possessory titles to public lands in this Territory.” Cod. Sts. 402, § 34.

S. ORR and TOOLE & TOOLE, for appellant.

This is an equitable action, and the only remedy the appellant has. The court below found all the facts for appellant.

The deeds and delivery of possession thereunder by the grantors of appellant conveyed a sufficient title, as against said grantors, to enable appellant to use the water in controversy. Respondents, to avail themselves of an outstanding title in a third party, must show such a title as would prevail against appellant. The court below put too much stress on the subject of original appropriation. The grantors of appellant had actual possession of the water and ditch, and delivered the same to appellant. Appellant has a title by the abandonment of his predecessors and his first possession, or the equitable title acquired by the deeds, and possession thereunder.

Respondents do not connect themselves with the first appropriator of the water, and must stand or fall on their appropriation, and their rights thereunder, at the date of the same. Appellant's motion for a decree should have been granted. Yale on Mining Claims, 378-9, 102; Ortman v. Dixon, 13 Cal. 33;McDonald v. Bear River & A. W. & M. Co., 13 Id. 220;Table M. T. Co. v. Stranahan, 20 Id. 198;S. C., 21 Id. 548.

G. G. SYMES and CHUMASERO & CHADWICK, for respondents.

A perpetual injunction will not be granted, unless the party applying therefor proves his legal title beyond a reasonable doubt. 2 Story's Eq., § 925; Parker v. Winnipiseogee C. & W. Co., 2 Black, 545. Appellant must go into a court of law and establish his legal right before he can procure an injunction. Irwin v. Dixion, 9 How. 28;Miss. & Mo. R. Co. v. Ward, 2 Black, 495.

Appellant was not prior appropriator, and failed to show a sufficient conveyance from the prior appropriator. The right to water is real estate, and a deed thereof must be duly acknowledged, according to the Territorial statute. Cod. Sts. 396, §§ 1, 3, 34, 35; Angell on Water-courses, 168, 172; 2 Black. Com. 17; Yale on Mining Claims, 112, 114, 204, 215, 252, 379; American Co. v. Bradford, 27 Cal. 360;Union W. Co. v. Crary, 25 Id. 509.

Respondents showed a title by appropriation, and appellant showed no title in parties under whom he claims. Respondents had possession when suit was commenced, and appellant must recover on the strength of his own and a better title. Hawxhurst v. Lander, 28 Cal. 332.

The California decisions cited by appellant are not applicable. They were made in California, under a law allowing running claims and water rights to be transferred by delivery of possession, before the act of 1860. Patterson v. Keystone M. Co., 30 Cal. 360;Goller v. Fett, Id. 481.

No adverse possession was shown by appellant. Copper H. M. Co. v. Spencer, 25 Cal. 18.

S. ORR and TOOLE & TOOLE, for appellant, in reply.

The right to water may be lost by abandonment. Such right may be proved by parol and rests, as between contestants, upon priority of possession. There are no facts to be settled by a trial at law. The court below found them. No stranger can deprive appellant of his rights, for want of proper title. Appellant's possession is good. Hill. on Inj. 9, 283; Browne on Frauds, §§ 135, 136, 467, 468, 131.

The water is but an incident to the ditches of appellant, the title to which is not disputed. Appellant recaptured the water by his ditch, after his grantors abandoned it, and was as much an original appropriator as if he had dug the ditch.

SERVIS, J.

The plaintiff appeals to this court from the judgment of the court below, refusing a perpetual injunction.

The plaintiff and defendants both owned valuable mining ground, below Indian creek, in Jefferson county, Montana Territory, and owned ditches conveying the waters therefrom to said mining ground. The plaintiff's ditches were known as the “Freeman ditch” and the “Cedar gulch ditch.” The defendants' was known as the “Tieleke ditch.” Both claimed prior right to the waters of said creek. The findings of the court below sufficiently state the facts, which findings are as follows:

“First. The Freeman ditch was constructed in 1866, and diverted and appropriated 100 inches of the waters of Indian creek in that year.

Second. The Cedar gulch ditch was constructed in the year 1867, and diverted and appropriated 150 inches of water from said Indian creek in that year.

Third. That the Tieleke ditch was constructed by defendants in the year 1868, as original appropriators, and diverted and appropriated 500 inches of water from said Indian creek in that year.

Fourth. That both of said first-mentioned ditches were constructed by various persons other than the plaintiff or his immediate grantors, prior to the construction of the said Tieleke ditch, whereby the defendants sought to and did take the waters from said Indian creek against the will of the plaintiff after his purchase of the first-named ditches.

Fifth. That the plaintiff and defendants respectively own valuable mines of gold, upon which they desire to use said water; and the said mines and ditches are comparatively worthless without the use of said water.

Sixth. That the water of said Indian creek, during a good portion of the mining season, does not exceed 150 inches, and during some portions of the mining season does not exceed 250 inches of water; and that the respective claims of the parties are hostile, and, for a great portion of the mining season, one must give way to the other.

Seventh. That the various persons constructing the Cedar gulch ditch and the Freeman ditch, by certain unsealed and unacknowledged paper writings, purported to convey their respective interests therein to certain persons other than the plaintiff's grantors, but who, thereafter, and in like manner, by like paper writings, transferred the same to plaintiff's grantors, who took possession thereunder (and not by appropriation) prior to the appropriation and construction of the Tieleke ditch, who thereafter conveyed the same to plaintiff.

Eighth. That one Freeman (to whom a part of the same had been so conveyed), in the year 1870, by deed duly executed, acknowledged and delivered, conveyed all his interest in said ditches to the plaintiff; and that Wilcox and Doughty (to whom the balance had been so conveyed), on the 6th day of September, 1870, by deed, conveyed all their interest in said ditches and water to said plaintiff, which deeds were, in all respects, in due form of law,...