Haggin v. Saile

• Decision Date: 29 January 1894
• Citation: 35 P. 514,14 Mont. 79
• Parties: HAGGIN v. SAILE et ux.
• Court: Montana Supreme Court

35 P. 514

14 Mont. 79

HAGGIN v. SAILE et ux.

Supreme Court of Montana

January 29, 1894

Appeal from district court, Deer Lodge county; D. M. Durfee, Judge.

Action by James B. Haggin against Raimond and Mary Saile to enjoin interference with a water right. Verdict and judgment for defendants. From an order granting plaintiff a new trial defendants appeal. Affirmed.

Forbis & Forbis, for appellants.

M Kirkpatrick, for respondent.

PEMBERTON C.J.

This case involves a dispute as to priority of right to the use of the water flowing through Glover canon, situate in Deer Lodge county. Plaintiff sought to enjoin defendants from interfering with his alleged prior right to the use of said water. The case was tried to the court and a jury. The jury returned special findings in favor of defendants, which findings the court adopted, and rendered judgment accordingly, to the effect that defendants are entitled to all of the water in question, prior to the claim of plaintiff. Plaintiff then moved the court, upon a statement of the case, for a new trial, which motion was by the court granted. From that order, defendants prosecute this appeal.

Plaintiff claims title to said water by virtue of the appropriation thereof by one Alexander Glover in 1872 and use thereof continuously until 1883, when he sold and conveyed the same, together with a parcel of land, to plaintiff, and further use of said water by plaintiff. Defendants concede that said Alexander Glover had a valid appropriation of said water, and conveyed the same to plaintiff as aforesaid. But defendants contend that plaintiff had abandoned and neglected to use said water, and that defendants had appropriated said water and used the same continuously, for the period of more than five years adversely to the claim of plaintiff. A review of the record discloses the fact that defendants' claim to the prior right to the use of said water depends upon the alleged fact of abandonment thereof by plaintiff, and the adverse use and enjoyment thereof by defendants during the period of five years' limitation, and further discloses that if the use made of such water after purchase by plaintiff, upon his lands, in the operation of making brick, carried on by one Campbell under contract, was a use by or on behalf of plaintiff, then the claim of adverse possession set up by defendants fails. Appellants admit that the case, as here presented, on the question whether ...