Crowder v. McDonnell
| Decision Date | 01 August 1898 |
| Parties | CROWDER v. McDONNELL et al. |
| Court | Montana Supreme Court |
Appeal from district court, Fergus county: Dudley Du Bose, Judge.
Action by J. L. Crowder against Edward McDonnell and others. From a judgment of nonsuit, and an order denying a new trial plaintiff appeals. Reversed.
Plaintiff (appellant in this court) sued defendants (respondents) for damages to plaintiff's lands, and for injury to his crops, and to have defendants enjoined from using a certain irrigating ditch to plaintiff's damage. Two causes of action are relied on. For the first it is alleged that defendants are joint owners in a certain irrigating ditch built in 1891, tapping the waters of Big Spring creek. Fergus county; that the ditch was so negligently and unskillfully located, constructed, and maintained by defendants over shale rock and gravelly soil that in 1895 the water percolated and flowed through the bottom of the ditch, and overflowed portions of plaintiff's land, injuring the land and destroying his crop. For a second cause of action plaintiff alleged that defendants are joint owners in the ditch; that they so negligently and unskillfully located and constructed the same cross plaintiff's land as to obstruct the natural flow of waters accumulating above the ditch, which had formerly flowed away by natural channels; and that as a consequence the waters broke through the banks of the ditch and overflowed plaintiff's lands, to his damage. Defendants denied all allegations of negligence and damage and set up that the land alleged to have been damaged was conveyed to plaintiff by R. R. Mills, and that, long prior to the conveyance of said land to plaintiff by Mills, Mills conveyed a right of way to defendants over the lands so conveyed to plaintiff, for the purpose of constructing said ditch and for the conveyance of the water therein, and also conveyed an interest in the ditch to plaintiff; that, under the said contract of conveyance, Mills became a tenant in common with defendants, and, if the ditch was negligently constructed, it was so constructed by plaintiff's grantor, and was accepted by plaintiff; that about March 25 1895, in an action in the district court, this plaintiff. Crowder, sued these defendants, except the defendants R. S. and R. E. Hamilton, and obtained judgment decreeing the plaintiff to be the successor in interest of said Mills in and to 60 inches of water described in the complaint, and that plaintiff was the owner of a sufficient interest in and to the ditch involved to convey said 60 inches of water to his lands. Wherefore, as the successor of said Mills, if the ditch was carelessly constructed, plaintiff, by accepting the same from his grantor is estopped to claim damages by reason of any alleged defects in the construction of the ditch; that, if the ditch overflowed its banks as alleged, it is due to the acts of the plaintiff in not properly at tending to the waste gate constructed on plaintiff's lands, and which, under the decree referred to, plaintiff was in duty bound to take care of. Plaintiff introduced considerable testimony, and at the close of it a motion for nonsuit was interposed, based upon the grounds that plaintiff was a cotenant and equally responsible for damages with the defendants, and that plaintiff and his grantor conveyed the right of way across plaintiff's land in consideration of the conveyance to plaintiff of 60 inches of water, and the ownership in the ditch to the extent of that number of inches of water, and that, in receiving the 60 inches of water, plaintiff waived all rights to damages under that agreement and under the decree of the court, and upon the further ground that plaintiff waived all rights to damages under that agreement and under the decree of the court, and upon the further ground that plaintiff had failed to prove damages. The court decided that the plaintiff was a tenant in common with the defendants, and could not sue his co-tenants for negligent construction of the ditch, inasmuch as his grantor. Mills, had accepted an interest in the ditch from the defendants. Judgment was entered for defendants, and plaintiff appeals from the order overruling his motion for a new trial, and from the judgment of nonsuit. The court had before if the decree and judgment roll in the case of Crowder against McDonnell et al., heretofore referred to. By this decree and judgment roll it appeared that certain special issues had been found in that case, establishing the following facts: That R. R. Mills, plaintiff's grantor, was to get 60 inches of water flowing through the ditch; that Mills was to have two outlets for said water on his ranch; that the work Mills had to perform for such privileges was one seventh of the manual labor from the beginning of the ditch to the west line of his land; that Mills was to be responsible for the proper care of the waste gate situated on the ranch during high water; that Mills was not to pay anything for the repairs of the ditch; and that Mills had not carried out his contract. All these findings were adopted and incorporated in the court's decree in the case referred to. The conclusions of law made in that decree were that the plaintiff was entitled to 60 inches of water flowing in the ditch of the defendants built across and upon the lands of the plaintiff, and was to have two points in the ditch on the lands of plaintiff wherefrom he might take and divert the water; that plaintiff was the owner of a sufficient interest in the ditch itself to convey 60 inches of water, and that defendants should be perpetually enjoined and restrained from diverting the water, or any part thereof, or from interfering in any manner with the plaintiff in the free use of...
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