Mannix v. Powell County

• Decision Date: 01 July 1921
• Docket Number: 4421.
• Citation: 199 P. 914,60 Mont. 510
• Parties: MANNIX v. POWELL COUNTY.
• Court: Montana Supreme Court

199 P. 914

60 Mont. 510

MANNIX v. POWELL COUNTY.

No. 4421.

Supreme Court of Montana

July 1, 1921

Appeal from District Court, Powell County; George B. Winston, Judge.

Action by C. N. Mannix against Powell County. From judgment dismissing the complaint, and from an order denying new trial, plaintiff appeals. Judgment and order reversed, and caused remanded for new trial.

Brantly C.J., dissenting.

S. P Wilson, of Deer Lodge, and H. W. Rodgers, of Anaconda, for appellant.

W. D Rankin, Atty. Gen., for respondent.

HOLLOWAY J.

The plaintiff claims to be the owner of two irrigating ditches and a right of way for each, between Avon and Helmville, in Powell county. The defendant county claims certain portions of each of the same ditches and rights of way, for public highway purposes, and in the improvement of its highway between the towns mentioned has occupied and is using the portions claimed by it. This action was instituted, and after issues joined and a trial had, the district court dismissed the complaint and rendered judgment for defendant's costs. From the judgment, and from an order denying a new trial, plaintiff appealed.

The judgment recites that it is not upon the merits, but based upon the court's conclusion that this action cannot be maintained, and the correctness of that conclusion is the only question presented.

Plaintiff does not contend that he is the owner of the lands over which the disputed portions of the ditches and rights of way extend, but only that he is the owner of the ditches and the right of way for each. The right of way is an easement, and nothing more (section 4507, Rev. Codes; 34 Cyc. 1767); and likewise the right to a ditch, canal, or other structure in which water is conveyed for irrigation or other lawful purposes, is merely an easement over the land occupied by the ditch, canal, etc. (1 Wiel on Water Rights, § 280; McDonnell v. Huffine, 44 Mont. 411, 120 P. 792; Smith v. Denniff, 24 Mont. 20, 60 P. 398, 81 Am. St. Rep. 408). Reduced to its lowest terms, then, the question presented is this: Will an action lie to quiet title to an easement as against a defendant in exclusive use of it?

Section 4515, Rev. Codes, provides that the owner of a dominant estate may maintain an action for the enforcement of an easement attached thereto, but the character of the action is not indicated. Section 6870, Rev. Codes, as amended by chapter 113, Laws of 1915, provides:

"An action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons, both known and unknown, who claim or may claim any right, title, estate, or interest therein, * * * adverse to plaintiff's ownership. * * * All actions brought under this section must be brought in the county in which the real estate or a portion thereof, as to which the title is sought to be quieted, is situated."

Like statutes have been enacted in many states, and they have been held generally to enlarge greatly the jurisdiction formerly exercised by courts of equity to quiet title or remove clouds. The purpose of such a statute is to afford an easy and expeditious mode of quieting title to real estate, and it is altogether immaterial that plaintiff is out of actual possession. 5 R. C. L. 643.

The present action is brought under amended section 6870 above, and may be maintained if that section is sufficiently comprehensive to include an action to quiet title to an easement. What, then, is the character of the easement in question?

Section 4425, Rev. Codes, declares that real property includes land and that which is incidental or appurtenant to land. An easement is an appurtenance to land (Smith v. Denniff,...