Fabian v. Collins

• Decision Date: 31 August 1878
• Parties: FABIAN, respondent, v. COLLINS, appellant.
• Court: Montana Supreme Court

3 Mont. 215

FABIAN, respondent,

v.COLLINS, appellant.

Supreme Court of the Territory of Montana.

August Term, 1878.

Appeal from Third District, Lewis and Clarke County.

THE action was tried before WADE, C. J.

SHOBER & LOWRY, and E. W. TOOLE, for appellant.

This is an action in equity. Appellants were in possession of the water when the action was commenced, and this should have been an action in the nature of ejectment. Equity will not interfere except in aid of such an action. Civ. Pr. Act, title Injunction; Raffetto v. Fiori, 50 Cal. 363;Felton v. Justice, 51 Id. 529;Lewis v. Cocks, 23 Wall. 466.

This action, having been improperly brought, should be dismissed. The title to a water-right is measured by the same law as is applicable to land. The complaint is defective in failing to state that respondents are the owners of any particular water-right, and attempts to deraign title by alleging the building of a ditch to convey water for the special purpose of mining a certain piece of ground in Jenny's basin. The title is not deraigned from any person having a right to the water. Where an attempt is made to plead deraignment of title every fact must be averred to show a complete title against defendant where the pleading sets up title in plaintiff. Castro v. Richardson, 18 Cal. 478;Rumsey v. Redell, 9 Minn. 34.

The complaint does not set up facts which entitle respondents to take all the water and sell it. Only a special use is claimed by respondents. Smith v. O'Hara, 43 Cal. 371;Fabian v. Collins, 2 Mon. 515.

The answer has a complete defense to the action. Respondents' grantors had a license from appellants to use the water, and cannot claim a better title than those who constructed the ditch. Tyler on Ejectment, 879-80; Irvine v. Adler, 44 Cal. 559;Luce v. Carley, 24 Wend. 451;Babcock v. Utter, 32 How. Pr. 439;Eggleston v. N. Y. & H. R. R. Co., 35 Barb. 162;Le Fevre v. Le Fevre, 4 S. & R. 241; Hepburn v. McDowell, 17 Id. 383.

Appellants were the first appropriators of the water, and respondents cannot upon the facts claim that they own the water because their grantors built the ditch. The verbal license did not divest appellants of any title, and they could retake the water at pleasure. Equity will not interfere to take away a legal right from a party. 1 Story's Eq. Jur. 5; Clinton v. Myers, 46 N. Y. 511.

The only question for trial was the ownership of the water-right, and the court should not permit this to be litigated in an action for an injunction.

The replication fails to plead an estoppel and there are no findings on the subject. No fraud of appellants is shown. The deeds do not convey any particular ditches or water-rights. To constitute an estoppel, some fraud must be practiced. All the facts constituting an estoppel must be fully set out in the replication, or it is worthless as a defense. Kinder v. Macy, 7 Cal. 206;Meeker v. Harris, 19 Id. 288;McCauley v. Fulton, 44 Id. 355;Tormey v. True, 45 Id. 105;Brant v. Va. C. & I. Co., 93 U. S. 326.

The recital in the judgment is not a finding under the Code. Unless the findings support the judgment, it must fall. Campbell v. Buckman, 49 Cal. 362;N. P. R. Co. v. Reynolds, 50 Id. 90;Harris v. Burns, 51 Id. 528.

WOOLFOLK & PORTER, and SANDERS & CULLEN, for respondents.

This is a proper action. Ejectment would not be an adequate remedy. There was no interference with the ditch, but the water, which was an incident to the ditch. To prevent the diversion of the water, an injunction was the appropriate remedy. Harris v. Shontz, 1 Mon. 212;Barkley v. Tieleke, 2 Id. 59;Tuolumne W. Co. v. Chapman, 8 Cal. 392;Sherman v. Clark, 4 Nev. 138;Fabian v. Collins, 2 Mon. 510; Civ. Pr. Act, § 129; Blanchard and Weeks on Mines, 749, 750.

There was no attempt to deraign title in the complaint.

The digging of the ditch under a parol license is no defense to this action. Appellants had not appropriated the water, and were mining several thousand feet below the point where respondents' ditch returns the water to Ottawa gulch, when the license was given. Appellants had the prior right to use the water where they were mining, but respondents' grantors could go above and use the water as they did, without asking appellants therefor. Butte C. & D. Co. v. Vaughn, 11 Cal. 143; Blanchard and Weeks on Mines, 745; Bouv. L. D., ““““““License.”

The parol agreement could not affect respondents, who had no notice of its existence. 2 Am. L. C. 507et seq. The authorities cited by appellants are cases where the circumstances gave notice, or no injury had resulted from want of notice.

A ditch is real estate, and appellants could not, by a parol agreement concerning the ditch, acquire any rights against appellants, who bought the ditch in good faith and without notice of the agreement. Reed v. Spicer, 27 Cal. 57;Smith v. O'Hara, 43 Id. 371;Barkley v. Tieleke, supra; Cod. Sts. 400, §§ 23-25; 402, § 34; 393, § 6; Nelson v. O'Neal, 1 Mon. 284;Columbia M. Co. v. Holter, Id. 296.

Appellants are estopped by their conduct from pleading the license. They were present when the deeds were made and witnessed them, and gave no notice of their claim. Godeffroy v. Caldwell, 2 Cal. 489;Parke v. Kilham, 8 Id. 77;Bryan v. Ramirez, Id. 461.

Estoppel was sufficiently plead, but if imperfectly plead, the objection comes too late after judgment. Hentsch v. Porter, 10 Cal. 555;Hallock v. Jaudin, 34 Id. 167.

BLAKE, J.

The report of the appeal in this case from the order of the judge dissolving a temporary injunction renders needless a repetition of the facts which are stated in the opinion of the court. 2 Mon. 510. The complaint was filed April 20, 1876, and contained the following allegations: That the plaintiffs [[[[[[[respondents] and their grantors and predecessors in interest on and before April 19, 1876, were the owners of the Fabian water ditch, which had been constructed for the purpose of conveying all the water of Silver creek flowing in Ottawa gulch upon placer mines of plaintiffs in Jenny's basin on Jenny's fork; that they appropriated the water by means of this ditch from the date of its construction and thereby acquired a prior right to the use thereof; that while they were in the peaceable possession of the water, the defendants [[[[[[[appellants] wrongfully diverted the same from the Fabian ditch, by means of another ditch, which intersected Silver creek at a point above the head of plaintiffs' ditch; that the defendants have continued to divert this water, and threaten to continue to so divert the same to the great and irreparable injury of the plaintiffs; and that the plaintiffs will be wholly deprived of the use of the water unless the defendants are enjoined from so diverting the same. The prayer of the complaint is for a preliminary injunction, and also that the injunction be made perpetual upon the final hearing.

The answer denies specifically the allegations in the complaint and alleges that Ottawa gulch was located and recorded October 4, 1864, as mineral land, and the water flowing therein, which includes that claimed by the plaintiffs, was appropriated for the use of the miners in the gulch; that the defendants have been working on their placer ground in this gulch and using the water since July 20, 1866; that long after this use and appropriation of the water by the defendants, certain parties, J. C. Loyd and others, owned placer claims in Jenny's basin on Jenny's fork of Ottawa gulch and recognized the rights of the defendants to the water; that said Loyd and others entered into an agreement with the defendants and other miners of Ottawa gulch that they would permit the water to flow down the gulch whenever the defendants and other miners wished to use the same, if the defendants and other miners would allow Loyd and others to convey the water to Jenny's basin; that Loyd and others then dug the ditch, which is claimed by the plaintiffs, under the agreement and were not to have any right to the use of the water as against the defendants and other miners in Ottawa gulch; that this was a personal license in favor of Loyd and others, who are the owners of the Fabian ditch, and that the ground in Jenny's fork, on which Loyd and others had the license to use the water, has been wholly worked out; and that the defendants require the water to mine their placer ground in Ottawa gulch, and committed the injuries complained of by the plaintiffs in constructing a reservoir in the gulch above the mouth of Jenny's fork.

The replication denies every allegation in the answer and alleges that the defendants are estopped from asserting the agreement “for the reason that said defendants were present at the time and date of the purchase by plaintiffs of said ditch and water-right from their grantors, and did not notify these plaintiffs of the existence of any such agreement;” that the plaintiffs had no notice of this agreement at the date of their purchase; and that the mining ground in Ottawa gulch above the mouth of Jenny's fork remained vacant for a long period after the Fabian ditch had been constructed and the water had been appropriated by the grantors of the plaintiffs.

At the trial, sixteen special findings were submitted to the jury and the following facts were established by the verdict thereon: 1. That the defendants or their grantors appropriated the water of Ottawa gulch prior to the time that Loyd and others constructed their ditch from this gulch to Jenny's basin. 2. That the parties who constructed the Fabian ditch made the agreement with the defendants and other miners, which is contained in the answer. 3. That the plaintiffs did not have any notice of this agreement when they purchased the ditch of Loyd and others. 4. That the plaintiffs were first notified of this agreement in the summer of 1874. 5. That Loyd and others and the defendants and others were the parties to this agreement. 6. That it was under this agreement that the parties who constructed the Fabian ditch...