Beach v. Spokane Ranch & Water Co.

• Decision Date: 03 June 1901
• Citation: 65 P. 111,25 Mont. 379
• Parties: BEACH et al. v. SPOKANE RANCH & WATER CO.
• Court: Montana Supreme Court

65 P. 111

25 Mont. 379

BEACH et al. v. SPOKANE RANCH & WATER CO.

Supreme Court of Montana

June 3, 1901

Appeal from district court, Lewis and Clarke county; Henry C. Smith Judge.

Action by Calvin Beach, an insane person, by Elizur Beach, his guardian, and others, against the Spokane Ranch & Water Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Sanders & Sanders and Toole & Bach, for appellant.

PIGOTT J.

Three aspects of this cause are reported in 21 Mont. 7, 52 P. 560 21 Mont. 184, 53 P. 493; and 65 P. 106.

McClellan creek, from which the defendant diverts water, empties into Prickly Pear creek at a point above the places where the plaintiffs divert the waters used by them. The plaintiffs are owners in severalty of divers parcels of land and of the water rights used thereon, and by this action sought a decree declaring that their rights to the use of the waters of Prickly Pear creek are prior and superior to the right of the defendant to use the waters of McClellan creek, and perpetually enjoining the defendant from diverting any of the waters of the tributary stream until the rights of the plaintiffs shall have been first satisfied. The relative priorities among the plaintiffs themselves were also sought to be established. The court found that all the water rights asserted by the plaintiffs, except one right owned by Harlow and Whitney, were superior to the right of the defendant, and that the plaintiffs were entitled to an injunction as prayed for. The relative rights of the respective plaintiffs inter sese were also determined, but, as such determination in no wise concerns the defendant, it will not be further noticed. Judgment was entered in accordance with the findings, and the defendant prosecutes the present appeal.

1. A demurrer to the complaint was overruled, and this is specified as error. The first ground of demurrer was that the court had no jurisdiction of the subject of the action. With respect to this ground of demurrer it is enough to say that the district court is a superior court of general jurisdiction, and, unless want of jurisdiction of the subject-matter affirmatively appears, the presumption must be indulged that it possesses jurisdiction. Inspection of the face of the complaint does not disclose lack of jurisdiction. We pass the objection that the complaint fails to state facts sufficient to constitute a cause of action with the remark that this ground is not mentioned in that part of defendant's brief devoted to the argument, and seems to be untenable.

2. Another ground of the demurrer was that several causes of action had been improperly united, in that the plaintiffs' causes of action were several, and not joint. Counsel argue that because the complaint alleges ownership in severalty of the lands which they desired to irrigate, and rights in severalty to the use of the waters of Prickly Pear creek, the plaintiffs have no common interest in the subject of the action or in the relief granted. But we think it is manifest that the plaintiffs have a community of interest both in the subject of the action and in obtaining the relief demanded, and hence properly united. In reaching this conclusion the provisions of section 1891 of the Civil Code, if applicable, need not be invoked. While persons may not, in the absence of a statute permitting it, join as plaintiffs in an action for damages unless there is a community of interest in respect of the injury suffered, as was practically declared in Miles v Du Bey, 15 Mont. 340, 39 P. 313, the rule is, and always has been, that those having a common interest in the subject of the action, and in preventing the defendant from doing that which will cause injury to them severally, may join as plaintiffs in a suit, the object of which is to restrain him. In so far as the question of misjoinder of plaintiffs and improper union of causes is involved, and the defendant is concerned, the subject of the action, as stated by the complaint in the present case, may be defined to be the alleged right of the plaintiffs, as against the defendant, to have the waters of Prickly Pear and McClellan creeks, to the extent of their appropriations, flow to their respective headgates or points of diversion; in other words, the right to restrain the defendant from depriving the plaintiffs of the use of the waters claimed by them. The object of the action is to obtain the injunction,--the ultimate relief sought. The cause of action is the threatened wrong, --the anticipated invasion of the right. Though without community of interest in the resulting injuries, they would be commonly affected by the defendant's diversion of the waters. They were alike or commonly interested in preventing the defendant from diminishing the volume of water to the use of which they were...