Hansen v. Galiger

• Decision Date: 20 May 1949
• Docket Number: 8895.
• Citation: Hansen v. Galiger, 123 Mont. 101, 208 P.2d 1049 (Mont. 1949)
• Parties: HANSEN et al. v. GALIGER et al.
• Court: Montana Supreme Court

208 P.2d 1049

123 Mont. 101

HANSEN et al. v. GALIGER et al.

No. 8895.

Supreme Court of Montana

May 20, 1949

Rehearing Denied July 23, 1949.

Appeal from District Court, Fifth District, Madison County; Lyman H Bennett, Sr., Judge.

Action by L. W. Hansen and others against Mike Galiger, and another for injunctive relief arising out of defendant's alleged refusal to permit plaintiffs to enter defendant's land to clean out a drainage ditch. From an order refusing to grant an injunction pendente lite, plaintiffs appeal.

Order affirmed.

Ralph J. Anderson, Helena, for appellants.

Albert H. Angstman, Helena, argued orally.

Lyman H. Bennett, Jr., Virginia City, argued orally, for respondents.

ADAIR Chief Justice.

Appeal from order refusing to grant injunction pendente lite in an action captioned 'L. W. Hansen, G. Dewey Allhands and Kathryn Pankey, Plaintiffs, vs. Mike Galiger and Charlie Mike Galiger, Defendants,' filed September 4, 1948, in the district court of Madison county, Montana, on which date an order to show cause on a day certain issued.

The complaint avers: That 'defendant Mike Galiger is the owner of certain lands * * * in Madison county, Montana particularly described as * * * SW 1/4 N.W. 1/4, W 1/2 SW 1/4 of Section 33, Township 5 S., Range 4 W. of the Montana Meridian, subject, however, to the easement and ditch right * * * of plaintiffs in the * * * McFadden ditch, which * * * runs in a general northerly-southerly direction upon and across the * * * described lands of the defendant Mike Galiger' (par. III); that plaintiffs are the owners 'of certain agricultural lands in Madison County, Montana, and certain water rights out of Alder Gulch Creek and appurtenant to said lands' (par. I); that plaintiffs are the owners of 'and entitled to the possession of, an easement and ditch right in a ditch known as McFadden Ditch, which * * * carries the water rights aforesaid from Alder Gulch Creek to the lands of the plaintiffs' (par. II); that 'defendants are now, and for approximately three years heretofore have been, interfering with the proper enjoyment of the plaintiffs in their said ditch rights through the lands of the defendant Mike Galiger in that * * * defendants have during said period, and do now, refuse to allow the plaintiffs to take machinery and equipment along the banks of said ditch for the purpose of cleaning the same, and that on or about the 19th day of August, 1948, the defendant Charlie Mike Galiger did by force of arms refuse to allow plaintiffs to drive a vehicle along the banks of said ditch for the purpose of repairing said ditch' (par. IV); that 'said ditch is clogged with vegetation and silt and is in such condition that it must be cleaned out this fall, prior to freezing, so that next spring it will be in condition to carry water with which to irrigate the lands of the plaintiffs;' that plaintiffs 'are desirous of cleaning said ditch with a dragline shovel to be operated along the banks of said ditch, but that defendants refuse * * * to allow the same and assert that plaintiffs must clean said ditch by hand, which procedure would be wholly impracticable and impossible' (par. V); that defendants' 'assertions, threats, claims and refusals * * * are wrongful and unlawful;' that 'plaintiffs have the right to go upon the said lands of the defendant Mike Galiger without interference and to use so much of said lands on either side of said ditch as may be required to make repairs and to clear out said ditch and to use vehicles and machinery for said purposes' (par. VI); and that 'the obstructions and interference as aforesaid by the defendants with the proper enjoyment by the plaintiffs of this easement in McFadden Ditch through the lands of the defendant Mike Galiger is and has been continuous and causes irreparable injury to the plaintiffs' (par. VII).

The complaint contains no description of the lands of the respective plaintiffs nor averments as to the amount or extent of their respective claimed water rights, nor as to the extent of their claimed easements, nor as to the location thereof except the allegation that the defendant Mike Galiger owns the lands described in paragraph III, supra, 'subject, however, to the easement and ditch right * * * of the plaintiffs in the said McFadden Ditch, which * * * runs in a general northerly-southerly direction upon and across the said described lands of the defendant Mike Galiger.'

Again the complaint contains no averments that defendants threaten or that they intend in the future to interfere with plaintiffs' claimed rights, or that they intend to occasion plaintiffs any irreparable injury other than the above quoted bald legal conclusions that 'the obstructions and interferences as aforesaid by the defendants * * * causes irreparable injury to the plaintiffs' (par. VII). See: Poorman v. Mills, 35 Cal. 118, 95 Am.Dec. 90; Allen Clark Co. v. Francovich, 42 Nev. 321, 176 P. 259; Giesy v. Aurora State Bank, 122 Or. 1, 255 P. 467, rehearing denied 122 Or. 1, 256 P. 763; 4 Bancroft's Code Pleading, § 1960, p. 3351; Crenshaw v. Crenshaw, Mont., 182 P.2d 477, 486; Emery v. Emery, Mont., 200 P.2d 251, 260.

Defendant Charlie Mike Galiger, by his guardian ad litem, and defendant Mike Galiger, personally, interposed a motion to quash the order to show cause on the grounds that the complaint fails to state facts sufficient to constitute a cause of action against either defendant or to warrant the issuance of an order to show cause why an injunction pendente lite should not issue or to warrant the issuance of an injunction.

On September 28, 1948, defendants' motion to quash was overruled pro forma,--a hearing was had on the show cause order whereat evidence was introduced and additional time allowed for the filing of briefs.

On December 31, 1948, briefs having been submitted, the court made an order denying plaintiffs' application for an injunction and extended plaintiffs' time for serving and filing a bill of exceptions.

February 11, 1949, notice of appeal was served and, on March 5, 1949, transcript on appeal was filed.

March 16, 1949, defendants filed, in this court, a motion for an order requiring plaintiffs' attorneys to produce and prove their authority to appear for and represent the plaintiffs on this appeal and particularly to appear for and prosecute the appeal as to Kathryn Pankey, and for dismissal of the appeal should plaintiffs fail to produce such authority. An affidavit by Kathryn Pankey, filed in support of defendants' motion, states that she was never consulted concerning the commencement of this action in the district court and that she knew nothing about it prior to about March 6, 1949, when she read a news item appearing in The Montana Standard, a newspaper published in Butte, Montana, stating that an appeal had been taken to this court in such action.

It is the contention of defendants, first, that on the facts shown by the Pankey affidavit the entire appeal should be dismissed, the second, that in any event, the appeal should be dismissed as to Kathryn Pankey.

Plaintiffs' counsel state that they had assumed the plaintiffs Hansen and Allhands had authority to represent Kathryn Pankey but that from the latter's affidavit they find they were in error in such assumption, and say in their brief: 'But, that does not warrant the dismissal of the appeal. The appeal should be dismissed as to her.' We agree that insofar as the appeal relates to Kathryn Pankey that it should be dismissed, and it is so ordered. See Union Bank & Trust Co. v. Penwell, 99 Mont. 255, 42 P.2d 457.

At the hearing the plaintiffs Hansen and Allhands introduced in evidence a decree in a water right suit entered January 29, 1924, in the district court of Madison county, being cause numbered 1772 therein. Such decree adjudges that Kate Pankey is the owner and entitled to the proper use of 40 inches, one cubic foot per second flow of the waters of Alder Gulch Creek diverted and appropriated June 1, 1865, through and by means of what is designated as the 'McFadden-Johnson-Nason Ditch' and that she, Kate Pankey, is also the owner and entitled to the proper use of 35 inches, 7/8 of one cubic foot per second flow of the waters of Alder Gulch Creek, diverted and appropriated June 1, 1880, through and by means of what is designated as the 'McFadden Ditch.' The decree also adjudges that M. Johnson is the owner and entitled to the proper use of 35 inches, 7/8 of one cubic foot per second flow of the waters of Alder Gulch Creek diverted and appropriated June 1, 1865, through and by means of that certain ditch designated as the 'McFadden-Johnson-Nason Ditch' and that he is also the owner and entitled to the proper use of 15 inches, 3/8 of one cubic foot per second flow of the waters of said Alder Gulch Creek diverted and appropriated June 1, 1919, through an unspecified ditch taken out of said Alder Gulch Creek by him.

At the hearing the plaintiffs Hansen and Allhands also introduced in evidence a later decree in a water right suit entered July 3 1947, in said district court in cause numbered 3089 therein. Such decree, after referring to certain water rights appropriated from the Ruby River through the 'Dupuis Ditch' adjudges: That G. Dewey Allhands and his predecessors in interest by means of the 'Stoltz-McFadden Ditch' tapping the right bank of Alder Creek, diverted and appropriated therefrom 35 miner's inches as of June 1, 1865, and 15 miner's inches of water as of June 1, 1919, and that Kathryn Pankey and Rose C. McFadden, by and through their predecessors in interest, by means of the 'McFadden Ditch' and the 'McFadden-Johnson-Nason Ditch' which taps Alder Creek, diverted and appropriated therefrom as of June 1, 1865, 40 miner's inches and as of June 1,...