Featherman v. Hennessy

• Decision Date: 08 February 1911
• Citation: 113 P. 751,42 Mont. 535
• Parties: FEATHERMAN et al. v. HENNESSY et al.
• Court: Montana Supreme Court

113 P. 751

42 Mont. 535

FEATHERMAN et al. v. HENNESSY et al.

Supreme Court of Montana

February 8, 1911

Appeal from District Court, Granite County; Geo. B. Winston, Judge.

Action by John A. Featherman and others against D. W. Hennessy and others. From a judgment establishing the relative water rights of the defendants James McGowan and the Oro y Plata Mining Company, McGowan appeals. Affirmed.

W. E Moore, for appellant.

Geo. A Maywood and W. T. Pigott, for respondents.

BRANTLY C.J.

This action was brought by John A. Featherman and five other plaintiffs against appellant James McGowan, the respondent Oro y Plata Mining Company, and 35 other defendants, to obtain a decree determining the respective rights of the parties to the use of the water flowing in Flint creek, in Granite county. All of the defendants answered, setting forth the rights claimed by them, and alleging priority of appropriation and use of specific quantities of water as against the plaintiffs, as well as against each other. Under a stipulation signed by the attorneys of all the parties, all affirmative matter alleged by any defendant was deemed denied by the plaintiffs and the other defendants, and each party was accorded the right to introduce, as against the claim of any other, evidence tending to show an abandonment or nonuser by such other party, or to establish a prescriptive right in himself by adverse use. Upon the issues so framed, the court made findings of fact and conclusions of law, and rendered a decree fixing the dates and amounts of the respective appropriations, and enjoining each of the parties from interfering with the right of any other. The decree awards to appellant, for agricultural and domestic use, 260 inches appropriated and diverted on April 23, 1888; 50 inches for a like use, under a second appropriation made April 1, 1892; 65 inches under a third, made on May 1, 1893; and 60 inches under a fourth, made August 1, 1902. It awards to the respondent Oro y Plata Mining Company 500 inches, appropriated and diverted on July 19, 1869. Inasmuch as it was found that the predecessors of respondent had appropriated this amount for the purpose of placer mining only and had used it exclusively for this purpose, allowing it to return to the body of the stream to be recaptured by others residing below the place of use, the respondent is required to confine its use exclusively to this purpose as heretofore, except that it may change the use to any other purpose which will not result in detriment to appropriations made below this point. The appeals are by McGowan from that portion of the decree awarding to the defendant mining company the right referred to, and from an order denying his motion for a new trial.

The contention made by appellant is that the evidence is insufficient to justify the findings in favor of the respondent. He submits three queries and contends that, while all should be answered in the affirmative, an affirmative answer to any one of them will be fatal to the right of respondent as adjudged in the decree. These queries are the following: "First. Is not the claim of the respondent lost by failure to deraign title to the water right claimed by it? Second. Is not the claim of the respondent lost by reason of abandonment and nonuser? Third. is not the claim of the respondent lost by reason of the statute of limitations?"

1. Flint creek flows north through Flint creek valley. The ditches of both appellant and respondent are taken from it on the west side. Respondent owns placer mines situated near the month of Henderson gulch, which opens into the valley from the west. A plat submitted with the transcript shows that the head of its ditch is some three or four miles above the mouth of the gulch. The country through which it is constructed is broken by ravines and gulches, which it is necessary to bridge with flumes. It appears that in November, 1868, Thomas Smith, one of the original defendants to this action, now dead, with six associates began the construction of the ditch to convey water to the placer mines mentioned above, then owned by them. It was finished in the following year. Mining operations were conducted there by these original owners until 1876 or 1877, when one Ferguson, and others associated with him, purchased the mines, with the ditch and water right. In the year 1878 they sold the property to a Chinaman by the name of Quong Lee. Four years later the latter sold to two other Chinamen, Buck Jim and You Hoy, who, having operated the property until 1888 or 1889, sold to Dominick Byrne. The respondent thereafter became his successor to an undivided three-fourths interest by mesne conveyances. It is not clear from the evidence whether any of the conveyances referred to, down to the time Byrne became the purchaser, were evidenced by any sort of writing. It is clear, however, that in each case a consideration was paid by the purchaser, or purchasers, who at once went into possession. The conveyance to Byrne was by deed duly executed. So, also, were all the conveyances by which respondent became his successor.

The contention made by counsel is that, since it appears that the conveyances by Smith and his associates, and by Ferguson and Quong Lee, under which Buck Jim and You Hoy claimed title, were by mere word of mouth and not in writing, the respondent has failed to connect itself with the original title of Smith and his associates, and therefore that its claim falls to the ground; in other words, these conveyances were void because within the statute of frauds. No objection was made at the trial, by appellant, to any of the evidence offered to establish these conveyances. It would seem that he ought not to be heard to make objection for the first time in this court; but, even so, such an objection would not have been well made. Appellant was a stranger to all of these conveyances; nor has he, by anything that has occurred since, been brought into privity with any of the parties to them. Being a stranger, he cannot be heard to object to them. The right to question a contract on the ground stated is purely personal, and cannot be asserted by one who is neither a party nor a privy to it. McDonald v. Lannen, 19 Mont. 78, 47 P. 648; Wood v. Lowney, 20 Mont. 273, 50 P. 794. And this is declared by the courts generally to be the settled rule. Book v. Justice Mining Co. (C. C.) 58 F. 106; Murray Hill Co. v. Havenor, 24 Utah, 73, 66 P. 762; Hill v. Groesbeck, 29 Colo. 161, 67 P. 167; Jackson v. Stanfield, 137 Ind. 592, 36 N.E. 345, 37 N.E. 14, 23 L. R. A. 588; Daum v. Conley, 27 Colo. 56, 59 P. 753; 20 Cyc. 306; Wood on Statute of Frauds, § 538.

In Jackson v. Stanfield, supra, in the opinion on rehearing, the court in stating the rule uses this apt language "Parties to contracts and their privies can alone take advantage of the fact that a contract is invalid under the statute of frauds. Many forms of expression by this and other courts illustrate the doctrine that a third person cannot make the statute of frauds available to overthrow a...