Bowen v. Webb

• Decision Date: 24 October 1908
• Citation: 97 P. 839,37 Mont. 479
• Parties: BOWEN v. WEBB.
• Court: Montana Supreme Court

97 P. 839

37 Mont. 479

BOWEN v. WEBB.

Supreme Court of Montana

October 24, 1908

Appeal from District Court, Carbon County; Sydney Fox, Judge.

Suit by Ellen E. Bowen against Malinda M. Webb to quiet title to an irrigation ditch. From a decree for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

W. F Meyer and Harry A. Groves, for appellant.

George W. Pierson, for respondent.

HOLLOWAY J.

Prior to 1903 Ellen E. Bowen owned certain land in Carbon county which required irrigation for its successful cultivation. An irrigation ditch had previously been constructed from Fishtail creek, called sometimes the "Chambers ditch," and for brevity that designation is adopted here. This ditch led to the Bowen land. In June, 1903, a dispute having arisen between Mrs. Bowen and Samuel Webb respecting the ownership of this ditch, a contract was entered into between them by the terms of which Samuel Webb agreed to convey his interest in the ditch to Mrs. Bowen upon certain conditions being fulfilled by the latter. In January, 1904, Mrs. Bowen commenced an action in the district court of Carbon county against Samuel Webb to compel specific performance of the contract of June, 1903. Such proceedings were had that a decree in favor of Mrs. Bowen was entered from which Webb appealed to this court. The decree was affirmed. Bowen v. Webb, 34 Mont. 61, 84 P. 739. In pursuance of the decree, Samuel Webb duly conveyed his interest in the ditch to Mrs. Bowen conformably with the contract of June, 1903. Thereafter Melinda M. Webb, the wife of Samuel Webb, having asserted that she owned an interest in the ditch, and a controversy respecting the matter having arisen between her and Mrs. Bowen, the latter in January 1907, commenced this action to quiet title.

The complaint alleges that one Harris owns a one-half interest in the Chambers ditch from the point where it taps Fishtail creek to a point at or hear the Harris ranch, and that the remaining portion of the ditch is owned by the plaintiff, Mrs. Bowen. In other respects the complaint is in the usual form, and prays that the defendant be required to set forth the nature of her claim, in order that the same may be determined by the court. Malinda M. Webb appeared by answer, in which she denied that the plaintiff, Mrs. Bowen, ever had any interest in the Chambers ditch, or in any portion of it, and alleged that she, Malinda M. Webb, owned all that portion of the Chambers ditch, except the Harris interest. In support of the allegations of her complaint the plaintiff offered testimony tending to show that Samuel Webb originally owned the interest claimed by her. She then offered in evidence the deed from Webb to her, made pursuant to the decree for specific performance. Other testimony was offered, which need not be recited. The defendant, Malinda M. Webb, then sought to show that in November, 1903, Samuel Webb had conveyed his interest in the ditch to one William Donahue, and that in December, 1903, Donahue had conveyed the same interest to Malinda M. Webb. The case was tried to the court sitting with a jury. A number of special interrogatories were submitted to the jury and answered, and thereafter, with slight modifications, these special findings were adopted by the court, and a decree rendered and entered in favor of the plaintiff for the relief for which she prayed. From that judgment or decree, and from an order denying her a new trial, the defendant, Malinda M. Webb, appeals.

Appellant's counsel make several assignments of error, but only a few of them need be noticed in detail. As approved by the court, findings 10, 14, 15, and 17 are as follows:

"Interrogatory No. 10: If you believe William A. Donahue acquired any interest in the ditch in question from Samuel Webb, when, if at all, was such transfer made, and what interest, if any, was conveyed? Answer: No interest acquired. No interest transferred. No interest conveyed."

"Interrogatory No. 14: If you say, in response to interrogatories Nos. 12 and 13, that Samuel Webb built one-half of the upper part of the ditch in controversy and all of the other portion, did he sell the same to William Donahue, and, if so, at what time did he sell it to Donahue? Answer: Didn't sell.

"Interrogatory No. 15: Did Donahue sell the ditch in controversy to the defendant, Malinda M. Webb? Answer: William A. Donahue did not convey to Malinda M. Webb any portion of the ditch in question, but attempted to do so in November, 1903."

"Interrogatory No. 17: Who is now the owner of the ditch and ditch interests described in the plaintiff's complaint and claimed by the defendant, Malinda M. Webb, in her answer? Answer: Mrs. Ellen E. Bowen, by virtue of the deed by Samuel Webb and Malinda M. Webb, his wife."

It is said that there is not any evidence to support any of these findings. So far as finding 17 is concerned, it may be remarked that there is abundance of evidence to support it provided Samuel Webb did not transfer his interest to Donahue prior to the time he executed his deed to Mrs. Bowen; and we think this will be conceded by appellant. Likewise it is apparent that, if Donahue did not acquire title to the ditch from Samuel Webb, he did not have any interest to convey to Mrs. Webb, for there is not any contention that Donahue acquired...