Great Falls Waterworks Co. v. Great Northern Ry. Co.
| Decision Date | 17 October 1898 |
| Citation | 54 P. 963,21 Mont. 487 |
| Parties | GREAT FALLS WATERWORKS CO. v. GREAT NORTHERN RY. CO. et al. |
| Court | Montana Supreme Court |
Appeal from district court, Cascade county; C. H. Benton, Judge.
Injunction by the Great Falls Water-works Company against the Great Northern Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed.
Complaint for injunction to restrain defendants (appellants), which are railroad corporations operating railroads at Great Falls from tearing up certain water mains laid by plaintiff (respondent) from its pumping station of the Missouri river to connect with its general water system at the city of Great Falls. Plaintiff owns a franchise to maintain and operate a waterworks system at Great Falls, with privilege of laying mains in the streets and alleys of said city, which system was in operation in January, 1896, when this action was commenced. On March 31, 1889, plaintiff purchased from the Great Falls Water Power & Town-Site Company, hereafter called the "Town-Site Company," certain realty then owned by the town-site company. Conveyance of this property was by deed in writing, and, in addition to the grant of the parcel for a pumping station, the deed contains a grant as follows "And the right of way necessary to lay water mains is hereby granted to said second party, its successors and assigns, but the same shall be laid, after crossing the Sand Coulee Branch of the Montana Central Railway Company, along the southerly line of the right of way of the said branch, to Tenth avenue south, in the city of Great Falls, and from the point where the same interesects said Tenth avenue south said mains shall be laid in the streets and alleyways of said city." Plaintiff built its pumping station on part of the realty so purchased, and laid mains to connect therewith. After the delivery of the deed above referred to, plaintiff contends that the line of right of way "was changed and modified by the mutual consent and agreement of the town-site company and the water company so that the same should be in a practically straight line from the said pumping station *** to the western terminus of Ninth avenue south, in said city as then platted; that said line of right of way for the laying of water mains was then and there, by the consent and agreement of the said town-site company and said water company, duly substituted for and in place of the said right of way for said mains as described in said deed, and it was understood and agreed that said right of way for mains so substituted should be and become a right of way for any and all water mains which might become necessary to lay from said pumping station to said city in the proper carrying out of the terms and conditions of said ordinance, and furnish said city and its inhabitants with water; that in pursuance of said consent and agreement and change and modification of said right of way for water mains the said water company immediately entered upon said right of way so agreed upon and did construct and lay a certain water main from said pumping station to the western terminus of Ninth avenue south in practically a straight line; that said main was laid with the full concurrence and consent of the said town-site company and said was company, and that the same has ever since been maintained by said water company and its successors in interest over said right of way without objection, let, or hindrance from any person or persons, corproation or corporations; that the plaintiff and its predecessors in interest have maintained and operated, held and owned, continously, openly, notoriously, and under a claim of right, since August, 1889, to the present time, the said right of way as agreed upon in substitution for the right of way described in said deed." When the franchise was granted, and the aforesaid deed was delivered, and the alleged substitution of right of way was made, and until August, 1890, the town-site company owned all the ground involved herein; but on Augest 15, 1890, it conveyed to the St. Paul, Minnepolis & Manitoba Railway Company certain lots, numbered 1 and 8, excepting therefrom so much of the said premises as are describedin the deed heretofore mentioned between the town-site company and the water company, dated March 31, 1889. This conveyance to the railroad company is alleged to have been with knowledge of the claim and rights of plaintiff and its predecessors. Defendants the Montana Central and Great Northern Railway Companies are operating railway lines over said lots 1 and 8. Plaintiff, finding its original main inadequate to supply the city and its inhabitants with water, proceeded, in 1895, at considerable expense, and with defendants, full knowledge, to lay another main parallel to the original one, about 18 feet away, and was about to cross the said lots 1 and 8 with the new main, when interfered with by defendants. Plaintiff ownes the only system of water supply for the city, and alleges that it will suffer irreparable damage unless allowed to carry out its obligations to supply the city and its inhabitants. Plaintiff also alleged that by reason of the modification of the right of way and its holding, occupancy, use, and possession since August, 1889, with defendants' full knowledge, it has become and is the absolute owner of said right of way, and by defendants' acts and failure to object to plaintiff's occupancy and use they are estoped from contesting plaintiff's right to occupy said ground as a right of way. The defendants deny any modification, or change, or substitution in the original deed, or that any main was ever laid in pursuance of any change in the right of way described in the deed delivered to plaintiff; deny that the first main was laid under claim of right on the part of plaintiff, but admit that the main was laid with the concurrence and consent of the town-site company, and has been maintained since by the license of the town-site company and its successors down to within six months preceding the institution of this suit. Defendants plead the purchase of the property involved by the deed from the town-site company of August, 1890, with the exception therein heretofore described, and aver actual occupation and possession of the whole of the premises by railway lines long before March, 1890. The necessity to lay the new main along the line adopted is denied, it being pleaded that it can well be laid along the course described in the deed from the town-site company to the plaintiff. Defendants ask to have their title quieted, and that plaintiff be required to remove both its mains within a reasonable time. The case was tried by the court. Findings and conclusions for plaintiff. New trial was denied. Defendants appeal. Further facts in the case appear in the opinion.
A. J. Shores, for appellants.
Clayberg, Corbett & Gunn and W. W. Phelps, for respondent.
HUNT J. (after stating the facts).
We gather from the evidence that Tenth avenue south, in the city of Great Falls, lies between Ninth avenue south and the water company's water station; that the Sand Coulee Branch of the Montana Central Railroad runs across the lots involved, and was in operation before the town-site company conveyed an easement to the water company by the deed dated March 31, 1889; that instead of running its mains, after crossing the Sand Coulee Branch of the Montana Central, along the southerly line of the right of way of the said branch to Tenth avenue south, and from the point where the same intersects Tenth avenue south in the strets and alleys as required by the deed, plaintiff laid its pipe directly to Ninth avenue south. It is now argued that the evidence shows that in July, 1889, the town-site company, acting through its president and secretary, orally agreed to a modification of the right of way described in the deed, and that pursuant to such agreement the main entered Ninth avenue south instead of Tenth. And upon this oral "modification" or "substituted" right of way plaintiff contends it may rely as fully as though a grant had been specifically described in the deed. T. E. Collins, a member of the Great Falls Water Company in 1889, and the official of the company who managed its affairs until it began to well water, negotiated for the site for the pumping station, which was practically given to the plaintiff by the town-site company. These negotiations commenced in 1889 with C. A. Broad water, then president of the town-site company. Mr. Collins said that the route was planned, and a draft made of a line direct from the pumping station to Ninth avenue from the works. This was talked of before the execution of the deed above referred to and delivered, and negotiations were made on that basis. A deed was prepared early in the spring of 1889, conveying a right of way and pumping station to Ninth avenue from the works. This right of way crossed part of the southwest block of the town lying between Ninth and Tenth avenues south. This deed, however, was not signed, so another one was executed, describing the right of way heretofore referred to and granted, which is different from the proposed route included in the first deed, not executed. The water company objected to the route included in this latter deed on account of expense to be incurred by following the line described, and because there was no one to be served on the Tenth avenue property, which was not then on the market. Nevertheless, the deed was accepted by the company, and no change was made in the terms thereof. Mr. Collins further testified that immediately thereafter negotiations were opened for a change of right of way; the result being that Broadwater, president of the town-site company, verbally authorized the water company to lay the main in a direct...
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