Bullerdick v. Hermsmeyer

• Decision Date: 03 July 1905
• Citation: 81 P. 334,32 Mont. 541
• Parties: BULLERDICK v. HERMSMEYER et al.
• Court: Montana Supreme Court

81 P. 334

32 Mont. 541

BULLERDICK v. HERMSMEYER et al.

Supreme Court of Montana

July 3, 1905

Appeal from District Court, Madison Country; M.H. Parker, Judge.

Action by Louis Bullerdick against Frederick Hermsmeyer and others. From a decree in favor of plaintiff, defendant Frederick Hermsmeyer appeals. Modified and affirmed.

W.A Clark, for appellant.

S.V Stewart, for respondent.

BRANTLY C.J.

The purpose of this action is to obtain a decree quieting the title to the use of the waters of Mill Creek in Madison county. The plaintiff asserts the right to the prior use of these waters to the amount of 500 inches to irrigate the west half of the southwest quarter of section 33, township 4 south of range 5 west, and lots 1, 2, and 3, and the south half of the northeast quarter of section 4, township 5 south of range 5 west, the said lands being arid, and requiring the use of water to render them productive. He alleges two causes of action, the first being based upon the adverse use of the waters from 1888 down to the date of filing the complaint and the second upon mesne conveyances from Sargent Hall and Joseph Cowan, who first diverted and appropriated the waters for the purpose of irrigating the lands described and others. The defendant Hermeyer also claims under mesne conveyances from Hall and Cowan, and alleges the right to the prior use of the waters to the amount of 300 inches to irrigate the west half of the southeast quarter, and the east half of the southeast quarter, of section 33, township 4 south of range 5 west. The claim of Cock is based upon a conveyance by Minnie O. Foster, as administratrix of the estate of Thomas J. Foster, of the east half of the southeast quarter of section 32, township 4 south of range 5 west. McCrea disclaims any interest in the subject of the controversy, he being a tenant of Hermsmeyer. The district court found that the parties are tenants in common in the Hall and Cowan ditch and the waters diverted thereby, that the plaintiff is entitled to the use of 200 inches, and that the defendants Cock and Hermsmeyer are each entitled to the use of 50 inches, these amounts being declared to be all that is required for use by the respective parties. A decree was entered settling the rights accordingly, and directing further that, in case the waters flowing in the stream should at any time fall below the measurement of 300 inches, the parties should be entitled to use them in quantities in proportion to their respective rights so declared. From the judgment and an order denying him a new trial, defendant Hermsmeyer has appealed.

There is no controversy but that the rights of the parties as to priority must be determined by the connection shown by them with the Hall and Cowan appropriation. This was made in 1865, and for the purpose of irrigating lands now owned by the plaintiff and defendant Hermsmeyer. One Thomas J. Foster succeeded to Hall and Cowan in 1866. From that time he cultivated all of the lands owned by the defendant Hermsmeyer in section 33, as well as those owned by the plaintiff. He also cultivated a portion of those owned by plaintiff in section 4. All of them were at that time unpatented public lands. Title to those in sections 33 and 32 were afterwards obtained by Foster through patents from the United States. Patent to those in section 4 was obtained by one Minnie O. Smith, who afterwards became the wife of Foster. Upon his death she administered upon his estate, and, under the direction of the probate court sold all the lands belonging to Foster in sections 33 and 32, except the west half of the southwest quarter of section 33. Defendant Hermsmeyer became the owner of those in section 33 by mesne conveyance, together with the water rights and ditches belonging to it. Thus his title is connected directly with the Hall and Cowan right. In fact, there is no controversy but that this is the case, the dispute being as to whether he is the successor to the whole of the Hall and Cowan right. On June 13, 1888, upon application of Minnie O. Foster, the probate court set aside to her as a homestead the west half of the southwest quarter of section 33 together with the water rights, ditches, and appurtenances there unto appertaining. The same court, also, on September 3, 1888, made and entered a decree declaring her entitled to a conveyance of 300 inches of the waters of Mill creek, to irrigate the lands belonging to her in section 4. This decree was based upon an application to the court by her, in which she set up an agreement between herself and Thomas J. Foster prior to their marriage, under the terms of which, and upon the payment of $100, Foster agreed to convey to her that amount of water, together with an interest in the ditch. In the same decree it was ordered and adjudged by the court that 200 inches more of the waters be set apart to her specially for the irrigation of the land in section 33 set apart to her as her homestead. The decree also directed that, inasmuch as it appeared to the court that the administratrix had sold all of her interest in the waters to Lewis Bullerdick, the plaintiff herein, the conveyance thereof should be made to him. This was afterwards done. Minnie O. Foster also conveyed to the plaintiff her homestead in section 33 and all the lands owned by her in section 4. Upon these proceedings, as well as upon his continued use of the water from the date at which they took place until the complaint was filed in this case, the plaintiff asserts the right to a prior use of 500 inches. In the court below, objection was made to the introduction of the proceedings in the probate court as evidence of plaintiff's title to an interest in the water, and this objection presents the principal question for determination upon this appeal.

The contention is made that the action of the probate court in setting aside the homestead was without jurisdiction, and therefore that the deed to the homestead from Minnie O. Foster to plaintiff conveyed to him no right to the use of water. This contention cannot be sustained. The statute in force at that time (Comp. St. 1887, div. 2, § 134) made it the duty of the probate court or judge, upon the coming in of the inventory, to set aside to the surviving husband or wife, or minor children of the decedent, all exempt property, including the homestead selected and recorded during the lifetime of the decedent. If none had been so selected and recorded, then it was the duty of the judge to select and set apart one from the estate of the decedent, and have it recorded. In either case the proceeding was upon petition, or upon the court's or judge's own motion. Thereupon the homestead so selected became the property of the surviving husband or wife and children, or, if there were none, then exclusively of the surviving husband or wife. Id. section 137. Foster had no children; therefore the fee of the homestead vested in his widow. It does not appear distinctly whether the court or judge acted upon petition or not. We do not think this material. It was sufficient that the land in question was set apart to her by the court or judge as her homestead. She thereupon had a right to convey it, and her grantee became vested with the fee. The conveyance by Minnie O. Foster to the plaintiff, therefore, necessarily vested him with whatever right she had to the use of water which was appurtenant to the home stead, together with the means of use. Sweetland v. Olsen, 11 Mont. 27, 27 P. 339; Tucker v. Jones, 8 Mont. 225, 19 P. 571. To what extent the use of water was appurtenant is not stated in the deed, and must be determined by reference to the evidence; for when the deed does not specify the particular appurtenant right alleged to have been conveyed by it, extrinsic evidence must be resorted to in order to establish it. Hays v. Buzzard, 31 Mont. 74, 77 P. 423. What the evidence tends to establish with reference to the use of the waters and ditch in connection with the homestead, we shall see later.

Contention is also made that the decree of the probate court of September 3, 1888, setting apart the 200 inches of the waters for use upon the homestead, and directing the conveyance of 300 inches under the contract made by Minnie O. Foster with Thomas J. Foster in his lifetime, is void upon its face, and that Bullerdick, the plaintiff, acquired no right under the conveyance made in pursuance of it. The validity of the decree is challenged upon several grounds. It will not be necessary to notice but one of them. It does not appear from the petition that the agreement was in writing. This fact, it is said, is jurisdictional. The proceeding was instituted under section 236, div. 2, Comp. St. 1887, which provides "When a person who is bound by contract, in writing, to convey any real estate, dies before making the conveyance, and in all cases where such decedent, if living, might be compelled to make such conveyance, the probate court may make a decree authorizing and directing his executor or administrator to convey such real estate to the person entitled thereto." It may well...