Cook v. Hudson

• Citation: 103 P.2d 137,110 Mont. 263
• Decision Date: 14 March 1940
• Docket Number: 7897.
• Parties: COOK et al. v. HUDSON.
• Court: United States State Supreme Court of Montana

103 P.2d 137

110 Mont. 263

COOK et al. v. HUDSON.

No. 7897.

Supreme Court of Montana

March 14, 1940

Appeal from Thirteenth District Court, Stillwater County; G. C Derry, Judge.

Action by Thomas B. Cook and another against Ernie Hudson to determine ownership of the prior right, for irrigation and other useful purposes, of the waters of Grove Creek in Stillwater County. From an unsatisfactory judgment, defendant appeals.

Cause remanded with instruction to modify decree, and, as modified judgment affirmed.

M. N Hoiness and F. S. Longan, both of Billings, M. L. Parcells, of Columbus, and Brown & Davis, of Billings, for appellant.

P. R. Heily, of Columbus, and G. J. Hutton and R. G. Wiggenhorn, both of Billings, for respondent.

MORRIS Justice.

This is an action to determine which of the two litigants is the owner of the prior right, for irrigation and other useful purposes, of the waters of Grove Creek in Stillwater county.

An adequate foundation for the claim of the first right is set forth in the complaint; uninterrupted enjoyment over a long period of years, injury arising from defendant's invasion of plaintiffs' right, demand made and refused that defendant cease such invasion, are alleged. Plaintiffs pray that defendant be required to set forth the grounds to his claim to the water, for a restraining order and, if the decree be in favor of the plaintiffs, for a permanent injunction enjoining further invasion of plaintiffs' rights and for costs of suit.

Defendant's special and general demurrers were overruled. The answer admits plaintiffs' ownership of the land upon which plaintiffs used the water, and an appropriation by H. I. Grant through whom plaintiffs deraign title, but alleges a fatal break in plaintiffs' chain of title, and otherwise denies generally all the material allegations of the complaint, then sets up five affirmative defenses--two upon right by prescription predicated upon hostile use and upon abandonment by plaintiffs' predecessors in interest, and two as pleas in bar to plaintiffs' alleged right of action by operation of sections 9015 and 9016, R. C., and a fifth upon prior right by appropriation.

Special and general demurrers to the affirmative matter in the answer were overruled. A motion to strike was granted in part. The stricken portion is shown in the record.

The complaint alleges appropriation by plaintiffs' predecessors in interest of 120 inches of the stream by notice recorded as of November 2, 1892, and its use on 160 acres of land described as the E 1/2 NE 1/4, SW 1/4 NE 1/4, and the SE 1/4 N.W. 1/4 of section 18, T. 4 S., R. 18 E., M. M.

The cause was tried to the court sitting with a jury. Twelve special interrogatories were submitted. No answer was returned to interrogatory No. 11, and none was necessary by reason of the negative answer to No. 10. The other interrogatories and respective answers are as follows:

"Interrogatory No. 1: Do you find that H. I. Grant being the person who had a squatters claim on the land which is now part of the place owned by the plaintiff, made an appropriation of water in manner and form as set forth in the Notice of Appropriation which has been received in evidence as Plaintiff's Exhibit 'G'? (Answer yes or no.) Answer: Yes.

Interrogatory No. 2: If you have answered Interrogatory Number 1 by the word 'yes', state whether or not water has been used for the irrigation of land under and by virtue of said appropriation. (Answer yes or no.) Answer: Yes.

Interrogatory No. 3: If you have found that water was used for the irrigation of land under the appropriation made by H. I. Grant, state how many miners inches of water were used, and for what period of time it has been used. (If different amounts for different periods, give amounts and the different years in which used.) Answer: 40 to 120 inches.

Interrogatory No. 4. If you have found water was used for irrigation, under and by virtue of the H. I. Grant appropriation, what proportion of the waters of Grove Creek were used for such irrigation during the time irrigating was being done? Answer: All at point of diversion.

Interrogatory No. 5: Do you find that Joe Severin, being the person who has a squatters claim on the land which is now part of the place owned by the defendant, made an appropriation of water in manner and form as set forth in the Notice of Appropriation which has been received in evidence as Defendant's Exhibit 7? (Answer Yes or No.) Answer: Yes.

Interrogatory No. 6: If you have answered Interrogatory Number 5 by the word 'yes', state whether or not water has been used for the irrigation of land under and by virtue of said appropriation. (Answer, yes or no.) Answer: Yes.

Interrogatory No. 7: If you have found that water was used for the irrigation of land under the appropriation made by Joe Severin, state how many miners inches of water were used and for what period of time it has been used. (If different amounts for different periods, give amounts and the different years in which used.) Answer: 15 to 30 inches.

'Interrogatory No. 8: If you have found water was used for irrigation under and by virtue of the Joe Severin appropriation, what proportion of the waters of Grove Creek were used for such irrigation during the time irrigating was being done? Answer: All at point of diversion.

Interrogatory No. 9: From all the evidence in this case, on which place do you find water has been used for irrigation more continuously and in larger amounts, on the place originally located by H. I. Grant, or on the place originally located by Joe Severin? Answer: H. I. Grant.

Interrogatory No. 10: Do you find that water was ever used to irrigate land out of the ditches on the so-called Severin place, now owned by defendant, at a time when the occupant of the place now owned by plaintiffs knew that such water was being used, and at a time when such water was then wanted and required for irrigation by the occupant of the Cook place? Answer: No.

Interrogatory No. 12: From all the evidence in this case, taking into consideration the time of construction of ditches, the size and use to which the ditches were put, and the amount of water used for irrigation, on which place do you find that water out of Grove Creek was first used for general irrigation, the Cook place or the Hudson place? Answer: T. B. Cook."

The findings of fact and conclusions of law of the court were in substantial accord with the answers returned by the jury to the special interrogatories, in so far as pertinent or applicable. The court found that the plaintiffs' predecessor H. I. Grant appropriated on or prior to October 1892, and thereafter applied to a beneficial use, 80 inches of the water in the irrigation of Grant's claim and plaintiffs had succeeded to the squatter's title to the lands and the water, deraigning their title to the water through the Grant appropriation and this 80 inches was awarded to the plaintiffs as a first right, prior and superior to any right of the defendant. It was further held that there was never any adverse use by the defendant, and that plaintiffs' rights were not affected by the statute of limitations; that such water as defendant and his predecessors in interest had used out of the stream was used at the sufferance of the plaintiffs and with full recognition of the prior right of the plaintiffs and their predecessors to the extent of the 80 inches decreed to them until the year 1937. The defendant was awarded 60 inches subject to the prior right of the plaintiffs, and defendant and all parties acting under him were permanently enjoined from interfering with plaintiffs' rights. Plaintiffs were allowed their costs. Judgment was entered accordingly and from such judgment the defendant appeals.

Fifty-eight specifications of error are assigned, argued under five enumerated points of law, which will be considered in the order enumerated:

"1. The respondents are not the successors in interest of either John Heide or Sam Dixon, and for want of privity may not claim, in this suit, any waterright out of Grove Creek from Henry I. Grant through either Mr. Heide or Mr. Dixon.

2. The judgment in the Heide-Carstens suit, which the respondents have pleaded as their title, is binding upon them and establishes the priority of their waterright, if they be successors of Henry Grant, John Heide and Sam Dixon, as not earlier than March 8, 1895.

3. Henry Grant made no valid appropriation of water from Grove Creek prior to October 21, 1892, the date of the appropriation made by Joseph Severin, the appellant's predecessor, and therefore any right coming to the respondents from Mr. Grant is inferior and junior to the right of the appellant.

4. The respondents have proved an appropriation and beneficial use at any time of no more than forty-five miner's inches of water as against the appropriation and right of Joseph Severin, the appellant's predecessor of date and priority October 21, 1892.

5. The costs of this suit in equity for the adjudication of controverted water-rights, claimed by both parties, should be apportioned; and either party should be required to pay his own costs without recovery over."

1. Taking up the consideration of the first of the five points of law submitted, the record shows a break in the chain of title to the water right initiated by Grant when one of his successors in interest, Dixon, surrendered possession of the lands described in the complaint to one of the predecessors in interest of the plaintiff, Magee.

Henry I. Grant initiated the water right upon which plaintiffs ground their claim of priority, Grant's notice of appropriation, as it appears in the record, was acknowledged October 31, 1892, recorded in the miscellaneous records of Carbon County November 2,...