Norman v. Corbley

• Decision Date: 13 March 1905
• Citation: 79 P. 1059,32 Mont. 195
• Parties: NORMAN v. CORBLEY.
• Court: Montana Supreme Court

79 P. 1059

32 Mont. 195

NORMAN v. CORBLEY.

Supreme Court of Montana

March 13, 1905

Commissioners' Opinion. Appeal from District Court, Gallatin County; W. R C. Stewart, Judge.

Action by Theodore Norman against A. L. Corbley. From the judgment rendered, and from an order denying a new trial plaintiff appeals. Reversed.

John A Luce, for appellant.

Hartman & Hartman, for respondent.

POORMAN C.

This is an appeal from a judgment and an order overruling plaintiff's motion for a new trial. The complaint alleges that the plaintiff is the prior appropriator, and has the prior right to the use of 200 inches of the waters of Corbley creek, Gallatin county; that the defendant interfered with this right. Plaintiff asked judgment that he be decreed to be the owner of the right to the prior use of 200 inches of the waters of Corbley creek, and that the defendant be restrained from interfering with this right. The answer of defendant denies that the plaintiff's prior appropriation consists of more than 100 inches of the waters of said creek and alleges an appropriation by the defendant; denies also that the defendant had interfered with the plaintiff's rights.

It appears from the facts of the case that the predecessors in interest of the plaintiff in 1866 appropriated certain waters of Corbley creek for the purpose of irrigating certain lands; that the plaintiff afterwards succeeded to the rights of the original appropriators, both in the water and in the land; that this water so appropriated has been used on this land continuously since that time; that in 1871 the defendant appropriated certain waters from this same creek for the purpose of irrigating lands then held by him; that the defendant has since occupied said lands and used said water for that purpose; that neither party filed nor recorded any notice of his appropriation until 1885, when, by agreement, they filed one notice, which is in part as follows: "Be it known that A. L. Corbley and Theodore Norman *** do hereby publish and declare, as a legal notice to all the world: I. That we have a legal right to the use, possession and control of, and claim four hundred (400) inches of the waters of Corbley Creek in said County and Territory, for irrigating and other purposes. II. [Describes the land on which the water is to be used.] III. That we have taken said water out of, and diverted it from said Corbley Creek by means of two ditches, which said ditches are 72 inches by 48 ditch No. 1, 120 inches by 48 ditch No. 2 inches in size, and carries or conducts 200 each inches of water from said Creek; said Ditch No. 1 taps and diverts the water from said stream at a point upon its South bank 125 feet Northwest from a large boulder marked XX and lying at, or near the mouth of Corbley Canon--said ditch No. 2 taps and diverts the water from said stream at a point upon its North bank 100 feet Northwest of a large boulder marked X being 278 paces above the mouth of said Corbley canon, thence running or to run, to and upon said described land. *** IV. That was appropriated and took said water on the ___ day of June A. D. 1866 as to ditch No. 1 and ditch No. 2 was appropriated the 15th day of June, 1874, by means of said ditches. V. That the name of the appropriator of said water as to ditch No. 1 was Wm. H. Arnold and as to ditch No. 2 A. L. Corbley. ***" It is claimed by the defendant that the date "1874" is error, and should read "1871." Which date is correct is immaterial to the questions presented on this appeal. The court found to the effect that the plaintiff and defendant were tenants in common of the waters of Corbley creek, each to the extent of one-half thereof, and that each of the parties is entitled to the use of one-half the waters of Corbley creek; that the defendant, by the use of one-half the waters of the creek, had not interfered with plaintiff's rights; that the plaintiff was not entitled to maintain this action.

Several questions of law are presented which are conclusive of the case, and will be treated under appropriate headings.

1. The plaintiff filed a motion for judgment on the pleadings, which motion was overruled. The denials contained in the answer required proof on the part of the plaintiff as to some of the material allegations of his complaint, and the motion was properly overruled.

2. Respondent claims that by continual user of one-half of the waters of Corbley creek since 1874 he has acquired a prescriptive right to continue the use thereof. Neither party could acquire any title to the corpus of this water, but only to the use thereof. Section 1880, Civ. Code; Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 39 P. 1054. So long as the plaintiff had all the water his necessity required, he could not complain, nor raise any question as to the right of the defendant to use all that remained. "In order to obtain a right by prescription, it is necessary that during the prescriptive period an action could have been maintained by the party against whom the right is claimed." Chessman v. Hale (Mont.) 79 P. 254; Church v. Stillwell (Colo. App.) 54 P. 395. There is no evidence in this record that plaintiff did not have all the water required for his use from the date of its appropriation to the time this dispute arose, and the claim of a prescriptive right cannot be maintained.

3. To sustain the findings of the court it is necessary that there should have been either an abandonment of plaintiff's prior appropriation or a conveyance of an interest therein. "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. Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 39 P 1054; Wood v. Lowney, 20 Mont. 273, 50 P. 794. To constitute an abandonment here, it would be necessary that there be an absolute surrender of the rights acquired by the appropriations of 1866 and 1871 or 1874, and the initiation of a new right subsequent to the abandonment. This new right is claimed under the notice of ...