Lowry v. Carrier

Decision Date30 December 1918
Docket Number3956.
Citation177 P. 756,55 Mont. 392
PartiesLOWRY et al. v. CARRIER.
CourtMontana Supreme Court

Appeal from District Court, Meagher County; John A. Matthews, Judge.

Suit by Emma M. Lowry and others against Frank C. Carrier. From a judgment for plaintiff and an order denying a new trial, the defendant appeals. Order affirmed, and cause remanded, with directions to modify findings and decree, and, when so modified, the decree to stand affirmed.

E. K Cheadle, of Lewistown, and Ford & Linn, of White Sulphur Springs, for appellant.

Walsh Nolan & Scallon, of Helena, for respondents.


This suit was instituted to have determined the relative rights of the parties to certain irrigating ditches. Plaintiffs prevailed, and defendant appealed from the judgment and from an order denying his motion for a new trial.

There is no substantial conflict in the evidence. Stated in general terms, the record discloses that William Scott, Magnus Johnson, and Peter Madson settled upon and inclosed certain unsurveyed, unappropriated public lands in Meagher county that Scott's inclosure was immediately north of the inclosures of Johnson and Madson, and separated from them by a division fence; that the lands are arid and require artificial irrigation; that about 1886 Scott appropriated 600 inches of water from Sheep creek, and constructed a main ditch running westerly from the creek to convey water upon the lands which he had inclosed; that about 1890 he sold to Johnson and Madson an undivided half interest in his water right and in his main ditch at least from the head-gate to a point near his corral; that at this point a lateral ditch was constructed to convey water upon the Johnson and Madson inclosures; that later two other lateral ditches were constructed-lateral No. 2 tapping the main ditch a short distance west of the corral, and lateral No. 3 tapping the main ditch a considerable distance further west; that a sublateral was constructed from lateral No. 3; that all these ditches were constructed and used before the government surveys were made; that lateral No. 3 and the sublateral were designed to be used, and were used, originally, to irrigate lands within the Johnson and Madson inclosures; that when the lands were surveyed by the government in 1898 it was ascertained that the several parcels of land mentioned did not conform to legal subdivisions; that the fence which separated the Scott claim from the Johnson and Madson claims was moved south to the quarter section line, with the result that a strip of land theretofore within the Johnson and Madson inclosure became a part of the Scott claim; that a county road was opened between the claims; that plaintiff Lowry is the successor in interest of Johnson and Madson; that defendant is the successor in interest of Scott; that the other plaintiffs are lessees of plaintiff Lowry, and that lateral No. 1, or "Lowry Branch," is not involved in this controversy, it being conceded to belong to plaintiff Lowry.

As we understand the record, the court found that the several ditches to which reference is made in the testimony of the witnesses are correctly represented by a map (Defendant's Exhibit A), which is here reproduced with the addition of certain figures to identify the ditches with greater particularity:

(Image Omitted)

On the map to which reference is made, lateral No. 1 is designated "Lowry Branch" and lateral No. 2 is marked "Carrier Ditch."

The issues raised by the pleadings are whether plaintiff Lowry owns or is entitled to use the main ditch from A to B, and whether she owns or is entitled to use lateral No. 3 and the sublateral. In her complaint she claims title to them: First, by virtue of the fact that they were constructed by her predecessors in interest over unsurveyed public lands; and, second, by virtue of adverse use.

The court found that the laterals in dispute were constructed by Johnson and Madson to irrigate lands within their inclosures, some of which lands fell within the defendant's claim when the survey was made and the fence removed to the quarter section line. The court further found that for more than 15 years prior to the commencement of this action plaintiff had been in the open, notorious, continuous, and adverse use of said laterals under a claim of right, and that for more than 10 years prior to the commencement of this action defendant, Carrier, had used the main ditch and laterals other than lateral No. 1. The court concluded that plaintiff Lowry and defendant each owns an undivided half interest in "said ditch, laterals, and sublaterals as they pass through the premises of defendant."

The decree awards to plaintiff Lowry an undivided half interest in certain ditches and an easement in the lands of defendant through which the ditches run.

Defendant complains of rulings of the court excluding evidence, of certain findings, and of the decree.

1. Upon the trial defendant sought to show the limited amount of water which had been or could be used upon plaintiff Lowry's lands and the amount used and necessary to be used on defendant's land, but the court excluded the evidence.

The respective water rights of these parties were not involved directly, but if plaintiff Lowry had grounded her title to the ditches in controversy upon prescription exclusively, the evidence would have been material. The extent of an easement acquired by adverse user is measured by the extent of the use. Section 4512, Rev. Codes; 9 R. C. L. 788, and cases cited. The court decreed to each party a one-half interest in the ditches, without reference to the extent of the use of them by either. Plaintiff Lowry pleaded title by prescription, but relied also upon the fact that the ditches had been constructed by her predecessors at a time when the land over which they were constructed and now owned by defendant was open, public land of the United States, and the evidence given by defendant himself fully sustains this latter theory.

Sections 2339 and 2340, United States Revised Statutes (U. S. Comp. St. §§ 4647, 4648), in effect grant to the owner of a water right the right to construct ditches over the public lands for the purpose of conducting water for irrigation purposes, and in effect declare that the subsequent entryman on such lands takes them burdened with the easement. Cottonwood Ditch Co. v. Thom, 39 Mont. 115, 101 P. 825, 104 P. 281. Upon the undisputed evidence, Johnson and Madson became the owners of lateral No. 3 and the sublateral by virtue of the fact that they constructed them on public land, and as such owners they were entitled to use them, and the extent of their use was of no concern to defendant, in the absence of a showing of abandonment. Evidence of limited use or of nonuser would not alone establish abandonment ( Moore v. Sherman, 52 Mont. 542, 159 P. 966), and upon this theory of the case, the offered evidence was immaterial.


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