Chessman v. Hale

• Decision Date: 21 January 1905
• Parties: CHESSMAN v. HALE.
• Court: Montana Supreme Court

79 P. 254

31 Mont. 577

CHESSMAN v. HALE.

Supreme Court of Montana

January 21, 1905

Commissioners' Opinion. Appeal from District Court, Lewis and Clarke County Henry C. Smith, Judge.

Action by William A. Chessman against Robert S. Hale. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Reversed.

M. S Gunn, for appellant.

Wm Wallace, Jr., for respondent.

POORMAN C.

This is an appeal from a judgment, and from an order overruling plaintiff's motion for a new trial. The complaint alleges that plaintiff is the owner, in possession of, and using certain lands, water ditches, and flumes, and that he has a right to the use of certain waters conducted to his land through said ditches and flumes; that defendant, for several months prior to the commencement of the action, in conducting placer mining operations, and in making excavations above the head of plaintiff's ditch, willfully, wrongfully, and negligently polluted and fouled the said waters by depositing therein large quantities of débris, sand, gravel, and tailings, which were carried and deposited by the waters in plaintiff's ditches and flumes and on plaintiff's land; that defendant threatened to continue these wrongful acts. Plaintiff asked for damages in the sum of $1,000, and an injunction restraining the continuance of the acts complained of. The defendant controverted the allegations of the complaint that defendant had invaded the rights of plaintiff, and further claimed that by 23 years' user he had acquired by prescription, as against plaintiff, the easement and right of flowage of the said waters charged with said tailings, in addition to the right acquired by contract. It appears that in 1873 defendant's predecessors in interest were conducting placer mining operations in Grizzly gulch, and using the waters thereof for that purpose; that they had also, by means of an artificial ditch known as the "Park Ditch," conducted the waters from another gulch into Grizzly gulch; that these waters so conducted would not naturally flow into Grizzly gulch; that in that year a contract was entered into between the plaintiff and the predecessors of the defendant, by the terms of which, for a valuable consideration, the waters, both of Grizzly gulch and those conducted through this Park ditch, were to be delivered to the plaintiff at the junction of Grizzly gulch and Ore Fino gulch; that the grantors reserved the right to the use of these waters for placer mining purposes, and to sell them to other parties for such use, but were not in any event to use or permit the waters to be used in such manner as to prevent their delivery to plaintiff at the junction of the two gulches; that deeds were afterwards executed, conveying the right to the use of these waters to this plaintiff; that the waters had been used by the plaintiff since that period after being used for mining purposes by the defendant above this junction; that the waters were permitted to flow down Last Chance gulch, which is formed by the junction of the two gulches above named, for some distance, and thence through plaintiff's ditch to the land in question; that the plaintiff also used certain waste waters flowing through a ditch known as the "Yaw Yaw Ditch," owned by other parties, conducting a part of the waters of Ten Mile creek into Grizzly gulch above the head of plaintiff's ditch. Plaintiff had for a great many years also used these waters for placer mining purposes.

1. If the defendant, under this contract, has the right to deposit tailings and débris in this water to any extent he may choose, it is within his power to make the plaintiff's purchase of the right to the use of the water a burden, rather than a benefit, but the terms of the contract do not confer upon the defendant any right to pollute these waters to any greater extent than that permitted by law. A proprietor acquires no title to the water, but only the right to use the same. Section 1880, Civ. Code. "No person, natural or artificial, has a right, directly or indirectly, to cover his neighbors' land with mining débris, sand, or gravel, or other material, so as to render it valueless." Hobbs v. Canal Co., 66 Cal. 161, 4 P. 1147. To the same effect are the decisions in Lincoln v. Rodgers, 1 Mont. 217, and Nelson v. O'Neall, 1 Mont. 284. This was the settled law at the time this contract was entered into. It has ever since remained the law, and is now the law. Fitzpatrick v. Montgomery, 20 Mont. 181, 50 P. 416, 63 Am. St. Rep. 622. But as was said in the last case cited: "We think, however, as is held by the authorities, that each case of this character should be determined by its own facts and circumstances. Persons appropriating water cannot avoid fouling and obstructing and to some extent diminishing the quantity of water in a stream. These things are unavoidable, and are permitted to a reasonable extent in the right use of the water." "One must so use his own rights as not to infringe upon the rights of another." Section 4605. Civ. Code. That which is reasonable, as shown by the facts of each case, applied under the settled rules of law, must be the guide. The prescriptive right as claimed by respondent, if maintainable under the authorities, is based upon a state of facts to be proven at the trial. It does not appear on the face of the pleadings. The complaint lays the inception of the injury complained of a few months anterior to the commencement of the action. In order to obtain a right by prescription, it is necessary that during the prescriptive period an action could have been maintained by the party against whom the claim is made. A right of prescription is limited by the character and extent of the user during a period requisite to acquire the right. Carson v. Hayes (Or.) 65 P. 814; Wood on Limitation (3d Ed.) 162; Mississippi Mills Co. v. Smith (Miss.) 11 So. 26, 30 Am. St. Rep. 546. It is conceded that this record does not contain all the evidence, and we cannot, therefore, go further in interpreting this contract, or in passing upon the prescriptive right claimed by respondent.

2. Plaintiff claims that he was, as of right, entitled to have the questions as to the existence of the nuisance and as to the damages determined by a jury. This the court denied, but held the action to be in equity, and that the verdict of the jury was merely advisory. That the facts stated in the complaint, if true, constitute a nuisance, both at common law and under the statute, is beyond question. Section 4550, Civ. Code; section 1300, Code Civ. Proc.; 3 Blackstone, Comm. 217 et seq. The seventh amendment to the Constitution of the United States provides, in substance, that the right of trial by jury shall be preserved in all suits at common law where the amount in controversy exceeds $20. This provision of the Constitution was in full force in Montana at the time of its admission as a state. Kennon v. Gilmer, 131 U.S. 22, 9 S.Ct. 696, 33 L.Ed. 110. Section 23, art. 3, of the Constitution of Montana, provides, in part, "The right of trial by jury shall be secured to all and remain inviolate."

With reference to the constitutional guaranty of the right of trial by jury secured by this seventh amendment, the Supreme Court of Montana in M. O. P. Co. v. B. & M. C. C. S. M. Co., 27 Mont. 536, 71 P. 1005, said: "It must not be overlooked that the right of trial by jury guarantied thereby is the right as it existed at the common law; that is, in that class of cases in which there was no impediment in the way of complete and adequate redress by proceeding according to the court of common law. The right of trial by jury under territorial government was exactly the same as that guarantied by this amendment--no greater, no less." If the right of trial by jury existed at the time of the adoption of the Constitution of the state, or of the seventh amendment to the United States Constitution, it still exists, and cannot be taken away by legislative enactment. It cannot become obsolete, for it is perpetuated by the state Constitution, and it continues so long as the constitutional provision continues.

It is beyond question that at common law an action for damages caused by the maintenance of a nuisance was triable by a jury. Blackstone, Comm., above, and the cases cited below. In Basey v. Gallagher, 20 Wall. 670, 22 L.Ed. 452, the court said: "Sometimes in the same action both legal and equitable relief may be sought--as, for example, where damages are claimed for a past diversion of water, and an injunction prayed against its diversion in the future. Upon the question of damages a jury would be required, but upon the propriety of an injunction the action of the court alone could be invoked. The formal distinctions in the pleadings and modes of procedure are abolished, but the essential distinction between law and equity is not changed. The relief which the law affords must still be administered through the intervention of a jury, unless a jury be waived. The relief which equity affords must still be applied by the court itself, and all information presented to guide its action whether obtained through masters' reports or findings of a jury, is merely advisory." Walker v. Railroad Co., 165 U.S. 593, 17 S.Ct. 421, 41 L.Ed. 837, was an action to recover damages from an overflow of lands, alleged to be caused by a wrongful obstruction of a natural water course. The court, in considering the question as to the right of trial by jury, said: "The seventh amendment, indeed, does not attempt to regulate matters of pleading or practice, or to determine in what way issues shall be formed by which questions of fact are to be submitted to a jury. Its aim is not to preserve mere matters of form and procedure, but substance of right. This...