Galiger v. Mcnulty

• Decision Date: 29 October 1927
• Docket Number: No. 6010.,6010.
• Parties: GALIGER et al. v. McNULTY et al. (SIMONSEN, Intervener).
• Court: Montana Supreme Court

80 Mont. 339

GALIGER et al.

v.McNULTY et al. (SIMONSEN, Intervener).

No. 6010.

Supreme Court of Montana.

March 23, 1927.

On Rehearing Oct. 29, 1927.

Appeal from District Court, Madison County; W. L. Ford, Judge.

Action by Martin Galiger and others against Flora McNulty, Mary Swayze, and others, in which Peter J. Simonsen intervened. From the judgment rendered, named defendants and intervener appeal. Affirmed.

E. B. Howell, of Los Angeles, Cal., George R. Allen, of Virginia City, and Howard A. Johnson, of Boulder, for appellants.

M. M. Duncan, of Virginia City, for respondents.

POORMAN, District Judge (sitting in place of Chief Justice CALLAWAY, who deemed himself disqualified), delivered the opinion of the court.

This action was instituted to have determined the relative rights of the parties to the use of waters of Ramshorn creek, in Madison county. The appeal is from the judgment.

The plaintiffs allege their separate ownerships of certain tracts of land in the Ramshorn valley requiring irrigation, their appropriation and use of waters from Ramshorn creek therefor, the invasion of their rights by the defendants, and they ask that they be decreed to be entitled to the use of the waters and that defendants be restrained from interfering with such use. Plaintiffs also plead a former decree, No. 916, made and entered August 30, 1909, in an action then pending in the district court for said county involving water rights in Ramshorn creek.

Several of the defendants appeared by demurrer or answer. The appealing defendants Flora McNulty and Mary Swayze joined in an answer in which they admit certain allegations of the complaint and deny others; plead a former decree entered in said district court on the 8th of October, 1875, in an action then pending, to which their predecessors in interest were parties defendant. That cause in the transcript is referred to as No. 1249. The said defendants, further answering the complaint, as ground for affirmative relief allege their ownership of certain placer mining claims in “the basin of Bivens gulch,” the necessity of water to operate the same, and the appropriation by their predecessors in interest of all the waters of Ramshorn creek prior to any other appropriation. The reply of plaintiffs negatives the affirmative allegations of the said defendants' answer.

The intervener and appellant Peter J. Simonsen bases his claim upon an alleged purchase of a part of the rights of the other appellants. The reply of the plaintiffs denies this claim of the intervener.

The specifications of error are numbered 1 to 66, inclusive, and include a very wide range. Respondents contend that many of the alleged errors are not set out with the particularity required by the rule of this court. There may be merit in this contention, but all questions involved may be considered under a few general heads and general propositions of law. The real question is, Have the rights of the appealing defendants, in and to the waters of the stream from which diversion is made, been properly adjudicated, preserved, and protected?

It appears from the transcript that Ramshorn creek at low water flows about 117 inches at the head of the Miners' ditch, and in extreme high water about 1,600 inches apparently at the head of the McKay ditch; that there are approximately 700 acres of land along this creek irrigated with this water by the respondents. The water used by appellants is diverted from Ramshorn creek and conducted through ditches referred to as the Miners' ditch, or upper ditch, the Hofeker or Stanley ditch used for a time, and the McKay, or lower ditch, without the watershed of Ramshorn creek and into Bivens gulch, where for more than 50 years it has been used by the appealing defendants and their predecessors for placer mining purposes, and, after being so used, will not return to Ramshorn creek, but flows down Bivens gulch where it is used by intervener for irrigating agricultural lands.

In the previous “water suit” No. 916, relative to these same waters, tried in said county in 1909 a judgment and decree was on August 30, 1909, duly made and given, adjudicating the rights of the parties thereto. The appellants and the defendant Dulien were not parties to that suit. At the trial of the instant case, the plaintiffs offered in evidence this decree No. 916, entitled Haines et al. v. Mock et al. This was admitted without objection. There was a lengthy discussion between counsel for the respective parties relative to the effect of said former decree upon the rights of the parties in the instant case, the conclusion reached being that said former decree was, as between themselves, binding upon all who were, or whose predecessors in interest were, parties to that suit, but was not binding upon the appellants herein, they not having been parties thereto. It was agreed that the plaintiffs in this present action, No. 2176, were parties in the former suit No. 916, or a successor in interest of a party in that action except appellants and Dulien. The court stated that it would be necessary for plaintiffs to prove the amount and date of their appropriations. It was then stipulated that the former decree was a correct statement of the dates and amounts of plaintiffs' appropriations. It was further agreed that the former decree (916) was not a stipulated decree, but was reached upon evidence taken in open court. A map showing the lands and ditches owned by plaintiffs was put in evidence without objection. Plaintiffs then introduced some oral evidence tending to prove that their claimed rights had been invaded by the appealing defendants and rested their case.

In specification of error No. 65 appellants claim that the court erred in giving effect to the decree in cause No. 916 “as res adjudicata or as prima facie evidence or any evidence against defendants McNulty and Swayze.” Had the court regarded these findings as res adjudicata as to defendants, the trial would have there ended, but they were not introduced or used to restrict appellants in their evidence in proving their claims or in combating the claims of plaintiffs. The introduction of the decree was to avoid the necessity of plaintiffs producing oral evidence as to the fact that they had made appropriations and the date and amount thereof; that is, to avoid a reproduction of the evidence that plaintiffs had some rights which it would require evidence to refute. It was to that point to which the stipulations and decree were directed. The decree was binding upon all parties to that action without any stipulation in the case at bar. When, under the stipulations, it was put in evidence with the oral testimony, a prima facie case was made by plaintiffs, and the defendants were given full opportunity to establish a superior or prior right or to disprove the claims of plaintiffs.

The objection that it does not appear that this decree is now in force is without merit, and, if it were material in this case at all under the stipulations, the defendants failed to make any showing of any modification of that decree. There was neither error nor abuse of discretion in admitting this decree or in the effect given to it.

At the opening of appellant's case the former judgment, alluded to in their joint answer, with the entire judgment roll, was offered in evidence. This is cause No. 1249, McKinney et al. v. McKay et al., the judgment or decree bearing date October 8, 1875. Plaintiffs objected to its introduction on the ground that it was not an adjudication of any water right, but only a judgment for costs in a suit for injunction, and that the plaintiffs were not parties thereto. Both the decree and the judgment roll were admitted, subject to the objection. Appellants contend that this 1875 decree gives to them a prior right to all the waters flowing in said Ramshorn creek at the point of diversion. In that suit the plaintiffs alleged prior rights in themselves to the use of the waters of Ramshorn creek; that the predecessors in interest of the appellants in the instant case had interfered therewith, and asked that they be enjoined and restrained from further interference. In their answer the defendants in that suit in effect denied generally the claims of the various plaintiffs, pleaded a statute of limitations, and asked “that they be hence dismissed and for their costs of suit.” The defendants did not set up any prior appropriations upon which they relied, and neither party asked the adjudication of any water rights in their pleadings. The court, as appears from the record, made certain findings, which appellants claim is an adjudication of their prior right to all of the waters of Ramshorn creek. These findings, if regarded as such in a water right suit, are very general and indefinite as to time, amount, right, and necessity. There were not any conclusions of law, but following the findings and independent thereof and without incorporating them in the decree or making any allusion to them, we have the statement:

“Wherefore it is adjudged and decreed that the defendants have judgment for their costs herein,”

-fixing the amount. The so-called findings are independent of the pleadings and the demands of the parties, and the decree is independent of the findings and gives the defendants all they asked. This decree is not an adjudication of any water rights, but only a judgment for costs in an action brought for the purpose of obtaining an injunction.

Section 9367, Revised Codes of 1921, provides that:

“The facts found and the conclusions of law must be separately stated, and judgment must thereupon be entered accordingly.”

The Supreme Court of this state, in construing this section, clearly distinguished between a decree and the findings, wherein it states that:

“The language of that section makes it clear that the findings of fact and conclusions of law are not the judgment, but merely the foundation for the judgment.” State ex rel. Reser v. District Court,...