Noteware v. Sterns

• Decision Date: 31 January 1871
• Citation: 1 Mont. 311
• Parties: NOTEWARE et al., appellants, v. STERNS, respondent.
• Court: Montana Supreme Court

1 Mont. 311

NOTEWARE et al., appellants,

v.STERNS, respondent.

Supreme Court of the Territory of Montana.

January Term, 1871.

Appeal from the First District, Madison County.

THE facts appear in the opinion. Judgment was rendered in August, 1870, by WARREN, J.

W. F. SANDERS and H. N. BLAKE, for appellants.

Congress has granted the appellants the right of way for the construction of their ditch over the public domain possessed by respondent. 14 U. S. Stat. 253, § 9. The words “right of way,” are used in other statutes by congress, and are to be construed the same. 14 U. S. Stat. 94, § 1; 240, § 3; 290, § 6; 294, § 2; Doran v. Central P. R. Co., 24 Cal. 259. This law is to be construed according to the intent of congress and the object in view. Sedgw. Stat. Law, 230, 231; Appeal of N. B. & M. R. R. Co., 32 Cal. 515.

The title of this act shows the intent “for the construction,” etc. Sedgw. Stat. Law, 50, 51; Flynn v. Abbott, 16 Cal. 365. Previous to the passage of this act, the owners of ditches had no right to construct them through the inclosures of others, without their consent. Yale on Water Rights, 211; Burdge v. Underwood, 6 Cal. 45;Weimer v. Lowery, 11 Id. 104.

Congress passed this act to give parties the rights previously denied by the courts of California. Yale on Water Rights, 211, 212, 380. The decision of the court below renders this act of no effect.

The respondent has no title or interest in the mining ground described in the pleadings that will defeat the right of way of appellants. The United States owns said ground and can make regulations and grants thereof. Doran v. Central P. R. Co., 24 Cal. 255, 259;Hutton v. Frisbie, 37 Id. 490-493;Rector v. Ashley, 6 Wall. 151;Frisbie v Whitney, 9 Id. 192-197.

The statute protects the rights of respondent by giving him damages for injuries committed by appellants.

WORD & SPRATT, for respondent.

The judgment roll is all that can be reviewed in this appeal. 3 Estee's Pl. 490, 496. The agreed statement of facts, submitted by the parties upon the issues raised by the pleadings, forms no part of the judgment roll. Civ. Prac. Act, §§ 188, 189, 190, 203.

Respondent owned the mining ground which appellants' ditch would injure. His rights thereto and the water had become vested under the law of congress, and appellants could not divest him of his rights by extending their ditch. Weimer v. Lowery, 11 Cal. 112;Courtwright v. B. R. & A. W. & M. Co., 30 Id. 573; Act of Congress of July 26, 1866, § 9; Bear R. Co. v. York M. Co., 8 Id. 330;Hoffman v. Stone, 7 Id. 48; 2 Sto. on Const. 1789; Yale on Water Rights, 211, 217, 379.

When private lands are to be taken for a ditch, proceedings must first be had to obtain the right of way under the act of congress. This suit is no such proceeding. Appellants admit that they were trespassers, in taking possession of respondent's ground, and ask a court of equity to protect them in so doing. They deprive respondent of his property without “due process of law.” 2 Sto. on Const. 1787; Yale on Water Rights, 211, 217; Amend. to U. S. Const., art 5.

SYMES, J.

This was an action for damages and a perpetual injunction, for filling up and injuring the water-ditch of plaintiffs. The complaint alleged, in substance, that plaintiffs were the owners of a certain water-ditch in Alder gulch, and dams and reservoirs; that, for the purpose of running the water of said ditch to their mining ground, they commenced the construction of an additional ditch; that, in order to run said ditch to their mining ground, it was necessary to construct the same across the mining ground of defendant; that they went upon defendant's ground and constructed some portion of their ditch, when they were prevented from further constructing said ditch, and the defendant filled up the same; and plaintiffs ask judgment for damages, and that defendant be restrained perpetually from interfering with plaintiffs constructing their ditch through or over defendant's mining ground.

Defendant answered, and admitted plaintiffs' ownership of ditch and water-right; alleged that he was the owner of 450 feet of mining ground below plaintiffs' dam and reservoir; that it was worth $2,000, and he had been the owner thereof since 1863; admitted that plaintiffs went on his ground and attempted to dig a ditch, without his consent, and that he filled up said ditch; denied that he interfered with plaintiffs' ditch, except on his own ground; further answering, alleged that the construction of said ditch over or through his mining ground would produce great and irreparable injury to the same, and render it wholly worthless; and that it was not necessary for plaintiffs to construct said ditch across his ground to enable them to save and conduct their surplus water to their mining ground; that constructing said ditch across his ground would deprive him of the use of the waters of Alder gulch for mining, to which he is entitled; denied irreparable injury, insolvency and damage, and asked judgment for costs.

Plaintiffs replied, but as no replication was necessary it is unnecessary to notice it.

The case was tried before the court below on an agreed statement of facts, and judgment of nonsuit rendered against the plaintiffs, an appeal taken from the judgment roll, no bill of exceptions, or statement on appeal, appearing in the record.

There appears, in the transcript, an agreed statement of facts, on which the case seems to have been tried. This agreed statement of facts not being included in a statement on appeal, and settled or agreed to in accordance...