Newton v. Weiler
| Decision Date | 21 March 1930 |
| Docket Number | 6556. |
| Citation | 286 P. 133,87 Mont. 164 |
| Parties | NEWTON v. WEILER. |
| Court | Montana Supreme Court |
Appeal from District Court, Carbon County; Robert C. Stong, Judge.
Suit by Phila Louise Newton against Frank Weiler. From the judgment rendered, plaintiff appeals.
Remanded for further proceedings consistent with opinion.
George W. Pierson, of Billings, for appellant.
Johnston Coleman & Jameson, of Billings, for respondent.
This is an appeal by plaintiff from a judgment entered in a suit to quiet title in two irrigating ditches.
Plaintiff is the surviving wife of Jasper A. Newton. In 1892 Jasper A Newton settled upon the east half of section 16, township 4 south, range 23 east, now situated in Carbon county, and at the same time his brother, W. E. Newton, settled upon the west half of the same section. The land was then owned by the state of Montana. Ditches and water rights on the south half of the section only are involved here. W. E. Newton obtained patent from the state of Montana to the southwest quarter in December, 1904.
In November, 1897, J. A. Newton leased the southeast quarter of the section from the state, and in November, 1902, entered into a contract for its purchase, and thereafter, and in December, 1909, obtained patent from the state, which issued to plaintiff. Defendant is now the owner of the southwest quarter of the section.
The only evidence in the record showing that W. E. Newton, or any one other than the state of Montana, had any possessory right in the southwest quarter prior to 1904, was the testimony of plaintiff, who said that, from what she had heard, W. E Newton leased the southwest quarter from the state at about the time her husband leased the southeast quarter.
Both quarter sections are irrigated with waters diverted from Rocky Fork creek, through what is now the new First Chance Ditch Company's canal. The general slope of the land is from west to east. The ditches here involved will be hereafter designated as the north ditch and the center or waste ditch.
The complaint describes the location of the north ditch as originating at the corporation canal at a point marked by a cement division box, situated 50 rods west of the northwest corner of the southwest quarter of section 16; thence running and extending easterly to a point 350 feet more or less east of the northwest corner of the southwest quarter of section 16; thence south 175 feet more or less; thence in a southeasterly direction to a cement box situated on the east side of the pasture of defendant; thence in an easterly direction paralleling the north line fence of defendant to a certain flume owned by plaintiff near the west line of her land, and 289 feet south of the northeast corner of the southwest quarter of the section. It shows that, save for 50 rods of said ditch located in section 17 (), the remainder of it is located in the southwest quarter of section 16, owned by defendant. The plaintiff alleges that she and her predecessors in interest have occupied and used the ditch continuously and adversely since May, 1893. The portion of this ditch from the cement box on the east of the pasture was plowed in by defendant in the fall of 1926.
At the time of filing the complaint in this action, an order to show cause was issued requiring defendant to show cause why he should not be restrained from molesting plaintiff in reopening and using the north ditch which had been plowed in by defendant.
A hearing was had on June 9 and 10, 1927, and a temporary injunction issued, based upon testimony introduced and a view of the premises, restraining defendant from interfering with plaintiff's use of the ditch. Thereafter, and on June 23, 1927, a further order was entered by the court reciting that defendant's counsel had informed the court that defendant would construct a ditch across his farm somewhere between the north boundary of his farm and the place where the plowed ditch was located, which ditch would parallel the north line of his farm to a point about 30 rods west of the northeast corner of his farm, thence southeasterly to a point 289 feet south of the northeast corner of defendant's farm, the same point of termination of the plowed ditch. The court thereupon ordered that, if the ditch be constructed by defendant as announced by his counsel, then the prior restraining order was to be held in abeyance, with a provision that, if the ditch was not constructed before a specified time, the original order was to become effective.
The defendant by answer alleged that he had constructed the new ditch in conformity with the court's order.
By decree, after trial on the merits, the court ordered that the north ditch must be maintained at the location established by the court as above described, and found that plaintiff is the owner of an undivided four-sevenths and the defendant of an undivided three-sevenths interest in the ditch.
1. By several assignments of error plaintiff contends that the court erred in refusing to find that plaintiff is the owner of an undivided four-sevenths interest in the north ditch as described in her complaint, and in not quieting title thereto in plaintiff and by substituting in lieu thereof the ditch constructed at the place and in conformity with the court's order.
The record discloses that neither plaintiff nor her predecessor in interest ever acquired an easement on the lands of defendant by conveyance. She contends that she has acquired an easement by prescription and also by virtue of section 2339, Revised Statutes of the United States (43 USCA § 661). While it has been held that claims of right under these theories are incompatible (Lowry v. Carrier, 55 Mont. 392, 177 P. 756), we will consider the merits of both contentions.
There is evidence that J. A. Newton and W. E. Newton constructed the north ditch in 1893. Since the title to the southwest quarter of section 16, on which the ditches in question were constructed, was in the state of Montana until December, 1904, and since W. E. Newton had no possessory right therein until about 1897, it becomes necessary to determine whether title by adverse possession, or a right by prescription, may be acquired against the state with respect to its school lands.
Our statutes of limitations, generally speaking, have application to the state. Thus section 9012, Revised Codes of 1921, provides: And section 9043 provides: "The limitations prescribed in this chapter apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties."
Counsel for plaintiff contends that by section 1880 of the Civil Code of 1895, as interpreted in the case of Smith v. Denniff, 24 Mont. 20, 60 P. 398, 50 L. R. A. 737, 81 Am. St. Rep. 408, the right is conferred to make an appropriation of water on unsold state lands. Granting that appropriations of water may be made on state lands, that right of itself does not carry with it the right to acquire a right of way for a ditch by prescription. The precise question here presented was not involved in that case, and it appears not to have been heretofore passed upon by this court. Here the land in controversy is a part of the land granted to the state of Montana by Act of Congress approved February 22, 1889 (25 Stat. 676), commonly known as the Enabling Act, for the support of common schools.
By sections 10 and 11 of the Enabling Act it is provided that sections 16 and 36 of every township in the state are granted to the state, and that they "shall be disposed of only at public sale, and at a price not less than ten dollars per acre, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools."
By section 7 of Ordinance No. 1, appended to the State Constitution, the state accepted the several grants made by the United States to the state of Montana, mentioned in the Enabling Act, "upon the terms and conditions therein provided." The state of Montana also, by the Constitution, covenanted that such lands "shall be held in trust for the people, to be disposed of as hereafter provided, for the respective purposes for which they have been or may be granted, donated or devised; and none of such land, nor any estate or interest therein, shall ever be disposed of except in pursuance of general laws providing for such disposition, nor unless the full market value of the estate or interest disposed of, to be ascertained in such manner as may be provided by law, be paid or safely secured to the state; nor shall any lands which the state holds by grant from the United States (in any case in which the manner of disposal and minimum price are so prescribed) be disposed of, except in the manner and for at least the price prescribed in the grant thereof, without the consent of the United States." Section 1, art. 17, Constitution of Montana.
The Constitution, also provides that the school fund derived from the proceeds of such granted lands (section 2, art. 11) "shall forever remain inviolate, guaranteed by the state against loss or diversion" (section 3, art. 11) "and sacred to the purpose for which they were dedicated" (section 12, art. 11).
These constitutional provisions are limitations upon the power of...
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