Donnell v. Humphreys

Citation1 Mont. 518
PartiesDONNELL et al., appellants, v. HUMPHREYS, respondent.
Decision Date31 August 1872
CourtUnited States State Supreme Court of Montana

OPINION TEXT STARTS HERE

Appeal from Second District, Deer Lodge County.

IN September, 1871, the court, KNOWLES, J., entered judgment in favor of Humphreys. The facts are stated in the opinions.

SHARP & NAPTON, for appellants.

The court should interpret and construe the deed, after knowing what property is referred to. It is to be construed in the light of surrounding circumstances in order that the intent and meaning of the parties should be perfectly understood. 1 Greenl. Ev., § 277.

It is not attempted to contradict or vary the language of the deed by parol evidence, but to explain and ascertain the subject-matter of the same. 1 Greenl. Ev., § 286 et seq.

After the jury had reported the facts to the court, relating to the Park ditch, the water conveyed by it, the relation of the other ditches to the same, and the value of the property with and without the Park ditch, the court could intelligibly construe the deed and gather the intent of the parties thereto. The evidence tending to show the above facts is material and should have been admitted. Tabor v. Bradley, 18 N. Y. 112-115;Myers v. Ladd, 26 Ill. 415;Grant v. Chase, 17 Mass. 445.

The Park ditch was conveyed as part and parcel of the granted property, or as appendant and appurtenant to the same. Such a construction by the court does not contradict or vary the language of the deed.

The court erred in excluding the evidence showing that the possession of the Park ditch was delivered to appellants at the time the deed was executed. 2 Greenl. Ev., title Ejectment; Huttmerer v. Albro, 18 N. Y. 51;Plumb v. Cattaraugus C. M. I. Co., Id. 392.

The cases above cited show this action is properly brought, and not an action to amend the deed, as contended. No objection having been made in the lower court to the joinder of causes of action, it cannot be made for the first time in the supreme court.

The language of the deed is simply “water from Silver Bow creek.” That expression per se, in reference to mining water rights, needs explanation. Frequently water rights of a ditch are artificial and constitute its only value. The deed does not say natural water of Silver Bow creek; consequently to construe the deed to cover artificial water would not contradict or vary its language.

The admissibility and materiality of the evidence are the only questions before this court, and not the effect of the same.

Counsel cited, as to description of property in a deed, 2 Whart. 622-630; 4 Kent's Com. 563-569; 4 Cruise's Dig. 203, 206, 226.

CLAGETT & DIXON, for respondent.

The complaint claims the Park ditch as a tributary, not as an appurtenance or right. The deed says nothing about tributaries.

The deed was plain on its face, and parol evidence was not admissible to vary or contradict it. As to when parol evidence is admissible to explain writing, see 1 Greenl. on Ev., §§ 277, 282, 283; 2 Pars. on Cont. 547, 563, 564. Parol evidence is inadmissible to vary the terms of a written contract to make it embrace property not described therein. 2 Washb. Real Prop. 636; Osborn v. Hendrickson, 7 Cal. 282.

Land can never be appurtenant to land, and a ditch cannot be appurtenant to another ditch. 1 Bouv. L. D. 113; 2 Washb. Real Prop. 626; Harris v. Elliott, 10 Pet. 53.

The cases of Tabor v. Bradley, 18 N. Y. 112, and Grant v. Chase, 17 Mass. 445, cited by appellant, are authorities for respondent. The question of estoppel cuts no figure in this case, nor does the alleged possession of appellants.

If the evidence had been admitted, could the verdict of the jury, or decision of the court, have been different? If not, this court will not reverse the case. Carpenter v. Norris, 20 Cal. 437;Merle v. Matthews, 26 Id. 455.

The evidence showed that the “Park” ditch conveyed water across the main divide of the Rocky Mountains and emptied it into Silver Bow creek, and that the water from it could be used in other ditches beside the Silver Bow ditches; and that there were two ditches, the “upper” ditch and “lower” ditch, that took water from Silver Bow creek. Could the court have found on this evidence that the “Park” ditch was a tributary to, or part of, or appurtenant to the other ditches, or that it could be properly included in the property described in the deed? Appellants attempt to make the deed include a different and additional ditch to the ones they bought. They must rest in this case upon the language of the deed.

If the Park ditch was intended to be conveyed, appellants should bring an action to reform the deed.

SHARP & NAPTON, for appellants, in reply.

Appellants claim the Park ditch by virtue of ownership, whether it is a tributary, an appurtenance, or part and parcel of the granted premises. The complaint alleges ownership, right of possession, and describes the property.

A ditch with water can be appurtenant to land, on the same principle that a reservoir can be an appurtenance to land. The granting words of the deed carry the feeder or tributary, which need not be mentioned. Thayer v. Payne, 2 Cush. 328.

In Tabor v. Bradley, 18 N. Y. 112, the court held as respondent states, because no such evidence was offered as appellants offered in this case.

A deed is construed most strongly against the grantor. The evidence that was excluded showed that the Park ditch was a feeder of the other ditches and had been so used for five years prior to the sale. The grantor should have expressly excepted the Park ditch in the deed, if he did not intend to convey it.

WADE, C. J.

This cause comes into this court on appeal from a judgment for defendants in the court below. The action is trespass, and the complaint alleges that the plaintiffs are the owners of and are entitled to the possession of certain water ditches, known as the Silver Bow Company's ditches, and more particularly known as the ditches formerly owned by Humphreys and Allison jointly, which ditches convey the natural waters of Silver Bow creek, and the waters emptied into said creek by what is known as the Park tributary of said ditches, to Butte City and the placer mines in that vicinity, also all the water rights, tributaries, flumes, reservoirs, rights, privileges and appurtenances thereto belonging; that on the 12th day of May, 1871, the defendant wrongfully and unlawfully cut and broke the Park tributary of said ditches, diverted the water therefrom and thereby deprived the plaintiffs of their right to the use and enjoyment thereof.

The defendant in his answer admits that the plaintiffs are the owners of, and are entitled to the possession, free use and occupation of the ditches, known as the Silver Bow Ditch Company's ditches, said ditches conveying water from Silver Bow creek to Butte City and the placer mines in that vicinity, and more particularly known as the Humphreys and Allison ditches, together with all the water rights, flumes, reservoirs, rights, privileges and appurtenances thereto belonging, but denies that the plaintiffs, or either of them, are or at any time have been the owners of or entitled to the possession, use, occupation or enjoyment of the Park ditch or the waters flowing through the same, or any right or privilege connected therewith, and denies that the defendant on the 12th day of May, 1871, or at any other time, unlawfully or wrongfully broke the said Park ditch, or diverted any waters therefrom, to which the plaintiffs are or were entitled. The record shows that on the 23d day of June, 1870, the defendant, his wife, and G. O. Humphreys joined in a conveyance and by their deed of that date conveyed to the plaintiffs the following described property, situate in the county of Deer Lodge, Territory of Montana, to wit: “The ditches known as the Silver Bow Ditch Company's ditches; said ditches carrying water from Silver Bow creek to Butte City and the placer mines in that vicinity, and more particularly known as the Humphreys and Allison ditches. The said R. W. Donnell & Co. to have and to hold each and all of the above-described property, together with all the water rights, flumes, reservoirs, rights, privileges and appurtenances thereto belonging or in any wise appertaining.”

Upon the trial, testimony was offered, tending to explain, as it was claimed, the subject-matter of this conveyance, and to show that the Park ditch was known as one of the Humphreys and Allison ditches, and to show the relation the Park ditch sustained to said ditches. Objection was made to the introduction of this testimony, and the objection was sustained. This action of the court is assigned as error.

By this testimony, it was sought to prove that the ditches known as the Silver Bow Ditch Company's ditches, and more particularly known as the Humphreys and Allison ditches, were made up of, and included what was known as the “lower ditch,” the “Park ditch,” and the “upper ditch;” that the lower ditch was built first, then the Park ditch, and afterward the upper ditch; that the upper and lower ditches carry water from Silver Bow creek and its tributaries to the placer mines, in the vicinity of Butte City; that the Park ditch carries water from a branch of the Bolder to Silver Bow creek; that it was built to supply the upper and lower ditches with water; that water from the Park ditch was used through the lower ditch, until the building of the upper ditch, which was in contemplation at the time the Park ditch was built; that the waters from the Park ditch have always flowed through the upper and lower ditch, and been used on the placer mines of Butte City; that the Park ditch is a feeder of the upper and lower ditches, and that the three ditches are known and reputed as the Humphreys and Allison, or the Silver Bow Ditch Company's ditches; that the plaintiffs took possession of the Park ditch, as well as of the upper and lower ditches, at the date of the deed; that at the time the Park ditch was constructed, its...

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    • June 27, 2007
    ...is to consider how the principles now codified in § 1-4-102 were understood and applied during that period. ¶ 42 In Donnell v. Humphreys, 1 Mont. 518 (Mont.Terr.1872), the parties disputed the language of a deed, dated June 23, 1870, by which Humphreys conveyed to Donnell the following "The......
  • Larsen v. Richardson
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    ...not to contradict the description, but to locate the deed upon the land.’ ” Baker Revocable Trust, ¶ 43 (quoting Donnell v. Humphreys, 1 Mont. 518, 526 (1872)). Here, the 2003 deed refers to a fence running northeasterly from Point C and then, near the center of Section 13, [361 Mont. 361] ......
  • Frank v. Hicks
    • United States
    • Wyoming Supreme Court
    • January 16, 1894
    ...if not universally, approved in the United States. The extent to which it has been carried is well illustrated by the case of Donnell v. Humphreys, 1 Mont. 518. In that there was a grant of ditches described in the conveyance as "the ditches known as the Silver Bow Ditch Company's ditches, ......
  • Koon v. Empey
    • United States
    • Idaho Supreme Court
    • December 5, 1924
    ...I am unable to find any support for the majority rule, either in the cases cited in support thereof or elsewhere. The case of Donnell v. Humphreys, 1 Mont. 518, upon, is a learned discussion of the subject, but announces the rule to be directly contrary to that of the majority opinion, in t......
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