Moore v. Sherman

• Citation: 159 P. 966,52 Mont. 542
• Decision Date: 17 July 1916
• Docket Number: 3675.
• Parties: MOORE v. SHERMAN ET AL.
• Court: United States State Supreme Court of Montana

159 P. 966

52 Mont. 542

MOORE v. SHERMAN ET AL.

No. 3675.

Supreme Court of Montana

July 17, 1916

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

Suit by Perry J. Moore against Roy O. Sherman and Annie Helen Pump. From a decree denying a particular right to defendant Pump and from an order denying a new trial, she appeals. Modified and affirmed.

Walsh Nolan & Scallon, of Helena, for appellant.

H. C Smith and Park Smith, both of Helena, for respondent.

HOLLOWAY J.

This suit was instituted by Perry J. Moore to have determined the relative rights of several claimants to the use of the waters of the East fork of Little Elk creek, in Meagher county. Defendant Helen Pump was denied any right by virtue of a certain appropriation made by her predecessor in 1892, and it is from the decree in so far as it denies this right, and from an order refusing a new trial, that these appeals are prosecuted.

The trial court found that in 1892, F. Miller made an appropriation of 50 miner's inches for the irrigation of a desert claim then owned by him; that he used the water upon the land continuously until his death in 1903; that his widow, executrix of his last will, did not thereafter exercise such right at all; that in 1911 defendant Pump succeeded to the land and its appurtenances, and that she did not use the water nor assert any claim to the right up to the time she appeared in this action; that the ditch constructed in 1892 was suffered to become out of repair and to become overgrown and filled until it was practically indistinguishable upon the ground, was incapable of carrying water, and gave no notice of its existence. Finding No. 15 is as follows:

"That the said defendant Helen Pump did not show, or attempt to show, either by herself or her predecessors in interest, any use of the waters of Little Elk creek through said 1892 ditch, or the exercise of act of dominion or ownership over the said ditch or water right by said Roy O. Sherman, but it does appear that neither the said Mrs. Miller, while managing said F. Miller estate, nor the said defendant Helen Pump, as successor in interest of said estate, had any conscious intent to abandon said ditch and water right, but, on the contrary, if they had any conscious thought on the subject, in their own minds did not intend to abandon the same, although said intention was not communicated, in any manner, to the public, and the said Mrs. F. Miller explained her failure to use the said water or ditch as being due to the amount of work involved in the management of said Miller estate property."

In what is denominated "conclusion of law E," the court declared that:

By failing "to so use any of said waters or to do any work upon said ditch and water right, and permitting, without objection or actual notice, third parties to initiate rights and place lands under cultivation and to cultivate the same for years, under the assumption that no such right existed and that the said right of 1888 was the only right claimed by said defendant as appurtenant to her lands acquired from said F. Miller, and by a course of conduct, which would, in the abence of her statement to the contrary, show a clear intent and purpose to abandon said right and ditch, if any she had, the said defendant is declared to have failed to establish any right in and to the waters of said Little Elk creek by reason of said ditch constructed in the year 1892, and to have forfeited any right which may have existed at the time of the death of said F. Miller, and to be estopped from asserting any such right as against the answering defendant Roy O. Sherman."

This conclusion presents the court's explanation of the decree, in so far as it denied to this appellant any right based upon the Miller appropriation of 1892.

The right acquired by Miller by virtue of his appropriation in 1892 was property. Smith v. Denniff, 24 Mont. 20, 60 P. 398, 81 Am. St. Rep. 408. It continued to be property to the time of his death, and passed to his successor. The use of the term "forfeiture" in connection with the loss of this property right was doubtless a mere lapsus linguæ. The right might be lost altogether by abandonment. It might be lost to another by adverse user, or the owner of the property might become estopped to assert his ownership as against another, but "forfeiture," in the connection employed, is a misnomer. There is not any claim of adverse user--no finding upon it and no adjudication. The judgment must be sustained, if at all, upon a theory of abandonment or estoppel.

1. Abandonment. In Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 39 P. 1054, this court quoted with approval the following:

" 'An abandonment is "the relinquishment of a right, the giving up of some thing to which we are entitled." Bouvier's Law Dictionary. "Abandonment must be made by the owner, without being pressed by any duty, necessity, or utility to himself, but simply because he desires no longer to possess the thing; and, further, it must be made without any desire that any other person shall acquire the same; for, if it were made for a consideration, it would be a sale or barter, and, if without consideration, but with an intention that some other person should become the possessor, it would be a gift" (Bouvier's Law Dictionary);' " and said, "Abandonment is a matter of intention."

In Norman v. Corbley, 32 Mont. 195, 79 P. 1059, we said:

" 'Abandonment is the giving up of a thing absolutely without reference to any particular person or purpose.' 1 Cyc. 4. Neither party could abandon to the other, either with or without a consideration, for that would amount to a sale or gift. Abandonment is a matter of intention."

The court found that neither...