Murray v. Tingley
| Decision Date | 25 October 1897 |
| Citation | 50 P. 723,20 Mont. 260 |
| Parties | MURRAY et al. v. TINGLEY et al. |
| Court | Montana Supreme Court |
Appeal from district court, Choteau county; Dudley Du Rose, Judge.
Action by Charles Murray and Louis Murray against C. Tingley and others. From the judgment, defendants and plaintiff Charles Murray appeal. Reversed and remanded.
This was an action arising from a conflict in claims to the waters of Big Sandy creek, in Choteau county, Mont. It appears that about May 2, 1888, one Martin commenced a ditch to divert water from said creek for the purpose of irrigating his squatter's claim of 160 acres, some two miles distant. In an attempt to comply with chapter 74, Comp. St. 1887, about May 2d he posted a notice of location at his point of diversion, and about the same time recorded a notice of appropriation. This recorded notice was not sworn to, and, in lieu of the affidavit required by the statute, contained simply an acknowledgment. In July he had extended his ditch to a point some 300 yards from the point of diversion. He had also plowed a furrow from the point where the ditch was incomplete to his land. This was all the work Martin ever did on the ditch. On or about November 19, 1888, he sold and conveyed his ranch and water right to one McDonald, who did not work on the ditch during the time he was its owner. About July 28, 1889, McDonald sold the ranch and water right to Charles Murray. Charles Murray and his brother, Louis Murray commenced work on the ditch where Martin had left off, in the fall of 1889, and completed it to within a quarter of a mile of the Martin ranch. It was not finished, however, until about the 26th day of April, 1890, at which time water was for the first time conducted on the land. The Murrays used the water through this ditch in 1890, 1891, and 1892, and irrigated certain lands, including the Martin tract. In 1893 1894, and 1895 the defendants interfered with their use of a portion of the waters claimed by them. On June 7, 1891, Louis Murray posted a notice of location at the point of diversion of the Martin ditch, and filed for record a notice of appropriation, duly sworn to. By these proceedings he attempted to make an appropriation de novo of the ditch originally commenced by Martin, and completed by his brother and himself. It was conceded below, for the purposes of the trial, that the defendants had commenced their ditch about May 20, 1888, for the purpose of irrigating certain unsurveyed agricultural lands held by them about 2 1/2 miles distant from their point of diversion. They had their ditch completed so as to convey water upon their lands in the spring of 1889. It appears that defendants had prepared and recorded on or about May 26, 1888, two notices of appropriation of the waters of Big Sandy creek. These notices were not sworn to as required by the statute, and were acknowledged, simply, just as was the notice which Martin had recorded. The case was tried to the court without a jury. During the progress of the trial, plaintiffs, the Murray brothers, offered in evidence the notice of location which Martin had recorded. Upon objection the court excluded this notice, the main ground of objection to it being that it was not sworn to. Thereupon the plaintiffs asked leave to amend their complaint so as to set forth that Louis Murray had on June 1, 1891, in compliance with the statute, made an appropriation of the water diverted by the ditch originally commenced by Martin. This amendment was allowed, over the objection of the defendants; the main ground of such objection being that the amendment changed the original cause of action. Defendants did not avail themselves of the court's offer to allow them time to plead to the new allegations in the amended complaint, but answered and proceeded with the trial. The notice of appropriation recorded by Louis Murray was admitted in evidence over the objection of defendants. After the plaintiffs had rested, the defendants offered in evidence their recorded notices of appropriation, but the court refused to admit them. The trial resulted in a decree awarding the plaintiff Louis Murray 130 inches of the waters of the creek; the date of his appropriation being determined as of June 1, 1891. The decree denied any relief to the plaintiff Charles Murray and the defendants, on the ground that they had not shown any right to the use of any of the waters of Big Sandy creek. There are two appeals--one by the defendants, and the other by the plaintiff Charles Murray--from the judgment and an order denying motions for a new trial.
Walsh & Newman, Toole & Wallace, Leslie & Downing, and J. J Donnelley, for appellants.
H. G. & S. H. McIntire, for respondents.
BUCK J. (after stating the facts).
The district court properly excluded the notices of location offered in evidence by plaintiffs and defendants. The absence of affidavits was a fatal defect.
The decree is based on the theory that a water right cannot be acquired save by compliance with the statute regulating the appropriation of water. We think the trial judge took an erroneous view of the law. The statutes of this state in reference to the acquisition of water rights are substantially the same as those of California. Section 1257, div. 5, Comp. St. 1887 (section 1888, Civ. Code 1895), is as follows: "A failure to comply with the provisions of this chapter deprives the appropriator of the right to the use of the water as against a subsequent claimant who complies therewith, but by complying with the provisions of this act, the right to the use of the water shall relate back to the date of posting the notice." This section is substantially the same as sections 1418 and 1419 of the Civil Code of California. In the Montana section, however, the word "appropriator" is used inlieu of the word "claimant" in the California sections aforesaid. It is insisted that for this reason the Montana statute should be construed in a different manner from that of California. By a reference to the other sections of the Montana act, however,--sections 1255, 1256, div. 5, Comp. St. 1887 (section 1886, 1887, Civ. Code 1895), --in which the word "appropriator" occurs in the sense of "claimant," it is manifest that the said word, as used in said section 1257 (1888), is not susceptible of any greater or narrower force than the word "claimant." Hence the two words may be regarded as convertible, and as expressing the same meaning. Therefore no distinction can be drawn between the California water-right act and that of Montana. In California it is held that a valid water right may be acquired, even when there has been no compliance with the statute, where water has been actually diverted from a stream by means of a ditch, and applied to a beneficial use, in the absence of the inception of any adverse statutory claim. Wells v. Mantes, 99 Cal. 583, 34 P. 324. In the case of De Necochea v. Curtis, 80 Cal. 397, 20 P. 563, and 22 P. 198, to the same effect, on pages 400, 401, 80 Cal., and pages 198, 199, 22 Pac., the court expresses its view of the law as follows:
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