Blaser v. Clinton Irr. Dist.

• Decision Date: 19 October 1935
• Docket Number: 7341.
• Parties: BLASER v. CLINTON IRRIGATION DIST. et al.
• Court: Montana Supreme Court

53 P.2d 1141

100 Mont. 459

BLASER v. CLINTON IRRIGATION DIST. et al.

No. 7341.

Supreme Court of Montana

October 19, 1935

Rehearing Denied Nov. 12, 1935.

Appeal from District Court, Missoula County; Theodore Lentz, Judge.

Action by Albert F. Blaser against the Clinton Irrigation District and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

C. E Comer and John E. Patterson, both of Missoula, for appellant.

E. C Mulroney, of Missoula, for respondents.

MATTHEWS Justice.

The plaintiff, Albert F. Blaser, brought action against the Clinton Irrigation District, established in 1919, to compel the extension of its canal from a point near Smith creek to Dirty Ike creek, a distance of approximately two miles, and by a second cause of action alleged, sought to recover damages for loss of crops throughout the years from 1919 to 1932. Issue was joined by answer and reply, and a trial was had before the court sitting without a jury, a jury trial having been expressly waived by the parties. At the close of the trial the court made findings in favor of the defendants and entered judgment dismissing the action as to each of the causes alleged.

The plaintiff has appealed from the judgment; he makes forty-five specifications of error. The controlling questions raised are as to whether or not the order of the district court establishing the district fixed the western terminus of the canal at Dirty Ike creek, and, if so, whether oral testimony was admissible to vary the terms of that order, and, if the terminus was not so fixed, whether or not the evidence adduced is sufficient to prove, in conformity with the court's findings, that, before the hearing in the district court, the organizers changed their original plans and determined to extend the canal only to Smith creek, with the further agreement that each user should construct his laterals at his own expense.

The undisputed facts are substantially as follows: In the spring of 1919 the ranchers in the Clinton district, in Missoula county, determined to organize an irrigation district; they held preliminary meetings at which they employed an attorney to draft a petition, and a civil engineer to make a preliminary survey and prepare a map of the proposed district. The petition, prepared and circulated, complies with the requirements of sections 7166 to 7173, Rev. Codes 1921; it describes the intake proposed at the source of supply--Hellgate river--from which it is proposed to divert 3,000 inches of water through a canal extending "generally in a westward direction" and conducted "by means of ditches, canals and flumes and culverts onto and over the lands of the proposed district." The petition describes the lands of the nineteen proposing members of the district, totaling 1,512 acres, of which 675 acres lie west of Smith creek.

All of the proposing nineteen landowners signed the petition, with the exception of Dr. G. F. Turman, who was out of the state at the time the petition was circulated, and H. P. Greenough. The plaintiff, Blaser, signed the petition in which his land is described as "all of the Northeast Quarter of Section 18, Township 12, North, Range 17 West, north and east of the Hellgate river, and south of the Northern Pacific Railroad." This land is the extreme western portion of the proposed district, and is on Dirty Ike creek. The Greenough land described in the petition, 160 acres, lies just east of the Blaser land and some distance west of Smith creek.

The map, made pursuant to the preliminary survey, shows the lands described in the petition, with a section of the Hellgate river and sections of the Northern Pacific and Milwaukee Railroads, and shows portions of the feasible route for the canal. It does not show the proposed intake, which is some distance east of where the map begins, but thereon the canal is extended to Dirty Ike creek, on plaintiff's land, and there appears the word "Terminus."

The petition, with the map attached, was filed in the district court on August 2, 1919. Thereafter the Greenough interests refused to come into the district, and all lands lying north of the Northern Pacific Railroad--most of them being west of Smith creek--were withdrawn, and the plaintiff and others owning land south of that railroad and west of Smith creek were permitted substantially to reduce the amount of their land to be included within the district. By this method of withdrawal the plaintiff's land within the district was reduced to 43 acres, and the acreage of the district was reduced by 517.5 acres, 425.5 acres of which lie west of Smith creek. Thus the organizers were left with but 995.14 acres to stand the cost of construction, instead of 1,512 acres, as originally contemplated.

The petition was set for hearing as of September 10, 1919. On September 8 the petitioners, including this plaintiff, met for the purpose of determining what should be done in view of the shrinkage of the proposed district. The minutes of the meeting were kept by an aged farmer as secretary and are not clear as to the action taken. On this question there is some conflict in the evidence. However, in conformity with the positive testimony of half a dozen of those present, the court made its finding that, "owing to the fact that approximately 425 1/2 acres of said land first proposed to be included in said district lying west of Smith Creek, *** and about 92 acres east of Smith Creek, were eliminated, *** it was definitely decided, determined and agreed by such owners ***, including the plaintiff herein, that said main ditch or canal would run *** to a point where said *** canal would intersect Smith Creek; *** that such point on Smith Creek would be the termination and westerly end. That said district was to construct and maintain said main ditch or canal only, *** and that each land owner would *** tap said main *** canal and, at his own expense, construct and maintain a lateral ditch *** from that point to and upon his land for the purpose of conveying *** water *** to his land."

In addition to the positive testimony as to the conclusion reached without objection by the plaintiff, Dr. Turman testified that, after he was chosen for recommendation to be one of the commissioners of the district when created and before the meeting of September 8, Blaser told him of the proposed change in termination of the canal and that the change would be satisfactory, provided he, Blaser, was permitted to reduce his acreage; that he then told Blaser to have the land he intended to leave in the district surveyed and the remainder could be withdrawn, and they would have a definite understanding that the canal should stop at Smith creek instead of Dirty Ike creek. Blaser merely testified that he did not "recall" the conversation. Such a statement does not contradict the positive testimony of a witness. Lasby v. Burgess, 88 Mont. 49, 289 P. 1028. Plaintiff's land was reduced in accordance with his request.

The plaintiff, however, contends that all of this evidence was inadmissible as constituting a collateral attack upon the decree creating the district, which, it is insisted, adjudicated the terminus of the canal to be at Dirty Ike creek. If the final premise is based on fact, the plaintiff's position is sound, and the trial court committed error in admitting testimony to vary the decretal portion of the order establishing the district. Such an order is in the nature of a judgment or decree and cannot be attacked collaterally, unless the judgment roll in the cause shows it to be void. In re Fort Shaw Irrigation District, 81 Mont. 170, 261 P. 962; Walden v. Bitter Root Irrigation District, 68 Mont. 281, 217 P. 646; O'Neill v. Yellowstone Irrigation District, 44 Mont. 492, 121 P. 283. The decree stands as an absolute finality as to everything directly or impliedly determined. Lokowich v. City of Helena, 46 Mont. 575, 129 P. 1063.

However turning to the order establishing the district, we find no declaration therein that the canal shall be constructed over any...