Lensing v. Day & Hansen Security Co.
| Citation | 215 P. 999,67 Mont. 382 |
| Decision Date | 26 May 1923 |
| Docket Number | 5198. |
| Parties | LENSING v. DAY & HANSEN SECURITY CO. ET AL. |
| Court | United States State Supreme Court of Montana |
Commissioners' Opinion.
Appeal from District Court, Powell County; George B. Winston, Judge.
Action by B. F. Lensing against the Day & Hansen Security Company and others, to quiet title to certain water rights. Judgment for defendants, and plaintiff appeals. Affirmed.
W. E Keeley and S. P. Wilson, both of Deer Lodge, for appellant.
Irwin R. Blaisdell, of Deer Lodge, for respondents.
This is in effect an action to quiet the title to 250 inches of the waters of Your Name creek, as being appurtenant to the lands described in the complaint. The plaintiff holds said lands under a deed executed by the Day & Hansen Security Company one of the defendants herein, and delivered to the plaintiff on the 31st day of December, 1914. The granting clause of this deed, after describing the lands conveyed, continues:
"Containing, according to the United States government survey, 291.50 acres, more or less, together with such proportion of vendor's water and water rights as decreed to William T. Day and John W. Blair, September 20, 1912, of Your Name creek, as the average amount of water of said creek will equitably supply per acre to said land above described, now under the present ditch, considering the supply from said creek to be used equitably per acre upon 3,500 acres of land, * * * together with the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining, with the exceptions and reservations hereinbefore stated."
The plaintiff's grantor succeeded to the rights of William T. Day and John W. Blair, decreed under date of September 12, 1920. This decree entitled them to the use of 1,400 inches of the waters of Your Name creek, under certain conditions. The plaintiff alleged in his complaint that about June 1, 1876, the predecessors in interest of plaintiff appropriated 250 miners' inches of the waters of Your Name creek to the land now owned by plaintiff, and that by reason of the continuous use of the same said water became appurtenant to the land. His contention is that said amount of water was conveyed to him by implication under the general appurtenance clause in the deed. Testimony was offered in support of the plaintiff's complaint. The cause was submitted to the court sitting without a jury. No special findings were made, but judgment was rendered in favor of the defendants. The plaintiff has appealed from this judgment.
The only question presented by the appeal is a construction of the deed from the Day & Hansen Security Company to the plaintiff. The only phase of the case peculiar to water right litigation is that a water right acquired by appropriation and used for a beneficial and necessary purpose in connection with a given tract of land, is an appurtenance thereto, and as such passes with a conveyance of the land, unless expressly reserved from the grant....
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