Glantz v. Gabel

• Decision Date: 10 February 1923
• Docket Number: 5095.
• Citation: 212 P. 858,66 Mont. 134
• Parties: GLANTZ v. GABEL.
• Court: Montana Supreme Court

212 P. 858

66 Mont. 134

GLANTZ v. GABEL.

No. 5095.

Supreme Court of Montana

February 10, 1923

Appeal from District Court, Yellowstone County; Robert C. Stong Judge.

Suit by John F. Glantz against Conrad Gabel. From a judgment for defendant, plaintiff appeals. Reversed, with directions.

Pierson & Smith, of Billings, for appellant.

Johnston Coleman & Johnston, of Billings, for respondent.

CALLAWAY C.J.

In this action plaintiff and defendant sought a decree fixing their appropriations to the use of the waters of Hogan slough, a tributary of the Yellowstone river, and determining their rights in the ditch through which the appropriations were made, and respecting the right of way of the ditch across respondent's lands. Each claimed a prior appropriation. Plaintiff claimed to be the owner by prescription of an undivided one-half interest in the ditch from its headgate in the Hogan slough to the dividing box, mentioned later, and all of the ditch from that point to his own land. Defendant denied plaintiff's claim to any interest in the ditch whatsoever; alleged that neither plaintiff nor his predecessors in interest ever acquired a right of way for the ditch across defendant's land by purchase, condemnation prescription, or otherwise; alleged that plaintiff and his predecessors in interest had used the same only by permission of defendant and his predecessors in interest by way of license.

The court awarded plaintiff 110 inches of the waters of Hogan slough as of date April 1, 1896, and defendant a like amount as of date March 6, 1892. It determined that the use of the ditch by plaintiff and his predecessors in interest was through a "mere license," which was revoked in 1920, and debarred plaintiff from using the ditch further. The appeal is from the judgment.

Martin Burns, who was the first predecessor in interest of defendant, settled upon what is now known as the Gable place probably before 1890. In 1892 he constructed the Burns ditch, by means of which the water in question was diverted. The ditch commenced at a dam in Hogan slough, ran across the land of another, then entered the Gable land at its western boundary, and went well towards its easterly side.

B. Curtis, first predecessor of the plaintiff Glantz, settled upon lands which adjoined the Gable lands on the east as early as 1896. In April of that year he appropriated the waters of Hogan slough awarded to appellant, by means of the Burns ditch. Curtis extended the ditch from its end in the Gable field to his own land, and irrigated his crops with it that year. There has been and is no other means of irrigating the land. He and his successors in interest during each year thereafter used the water appropriated by him through the Burns ditch and the extension for irrigating the Glantz land, the court finding that at least 110 acres of the land have been reduced to cultivation and irrigated by that means.

Nobody knows what the arrangement was between Burns and Curtis as the result of which Curtis entered upon the Burns ditch, made his appropriation, and ever after used the same for irrigation. Curtis is dead, and Burns is presumed to be. It does appear that from the time Curtis extended the ditch he and Burns jointly kept in repair the dam and the ditch from the slough to the point where the Curtis extension began; from that point on Curtis maintained it. Indeed, it is beyond question that Curtis and his successors in interest, from April 1, 1896, until the spring of 1921, made an open, visible, continuous, and unmolested use of the ditch for the purpose of conveying the water appropriated by Curtis to the Glantz land. During all these years appellant and respondent and their respective predecessors in interest jointly repaired, maintained, and used the dam, and at least that portion of the ditch between the dam and the dividing box. This box was placed in the ditch at a point about 200 feet west of the Gable land by Snyder, who immediately succeeded Curtis, pursuant to an arrangement with Babcock, to whom Burns sold his land. The occasion for this arose in the spring of 1920 through the following circumstance, according to Snyder:

"Babcock's men got careless and allowed the water to come down and flood me. I had Mr. Babcock come out to the ranch and he consented that if I would take care of the ditch and put in a dividing box at his west line, he would take his water through separate ditches along the side of the ditch, leaving the old ditch for me exclusively."

The witness testified that he claimed "a half interest in the ditch from the dam in the Hogan slough to the Babcock place, and all the ditch running through the Babcock place." No one interfered with him in his use of the ditch; his right of way for it and the use thereof across the Gable place was never disputed. Snyder also said:

"I purchased in the fall of 1901. Mr. Curtis used the ditch to get water to his land. He enlarged the ditch. Both B. Curtis and Martin Burns told me that Curtis had a perpetual right there."

Defendant moved to strike out portions of this answer, which motion the court overruled, observing that it might do so later. Without discussing the reasons assigned by counsel, suffice it to say that the court's action in overruling the motion was correct.

John M. Walker was foreman for L. F. Babcock on the Gable place in 1904. Snyder was then living on the Glantz place. That year Snyder and his men assisted in building and repairing the dam in the slough. About 200 feet west of the Gable place the witness and Snyder built a dividing box. The old one had decayed and rotted away. Babcock furnished half of the lumber and Snyder half. The witness and Snyder worked together. Snyder carried the water across the Gable place through the main ditch to his place, and the water for the Gable place was used from the division box easterly and southerly in other ditches. In directing the witness as to his duties as foreman with respect to managing the Gable place, L. F. Babcock, then its owner, told Walker that Snyder had a half interest in the water and in the ditch leading from the slough down to the division box, and that Snyder owned the ditch from the division box to the Glantz place. That year the witness and Snyder also repaired the headgate and cleaned the ditch to the division box. From that point on Snyder did the work himself.

The witness Hugh P. Babcock gave testimony tending to show, in a slight degree, that Snyder and Linton, who succeeded Snyder used the ditch by his, Babcock's permission. The great weight of the testimony is against his testimony on...