Osnes Livestock Co. v. Warren

• Decision Date: 09 November 1936
• Docket Number: 7571.
• Citation: 62 P.2d 206,103 Mont. 284
• Parties: OSNES LIVESTOCK CO. et al. v. WARREN.
• Court: Montana Supreme Court

62 P.2d 206

103 Mont. 284

OSNES LIVESTOCK CO. et al. v. WARREN.

No. 7571.

Supreme Court of Montana

November 9, 1936

Appeal from District Court, Chouteau County, Eighth District; John Hurly, Judge.

Action by Osnes Livestock Company, a corporation, and another against J. Y. Warren. From the judgment, defendant appeals.

Cause remanded, with directions to amend judgment.

Towner & Lewis, of Fort Benton, and Belden & DeKalb, of Lewistown for appellant.

John L Slattery and Cooper Stephenson & Glover, all of Great Falls, and W. H. Hoover, of Butte, for respondent.

ANDERSON Justice.

This action was brought to secure an adjudication of the water rights of the plaintiffs and the defendants to the waters of Cottonwood creek, rising in the southerly part of the Highwood Mountains and flowing easterly in Chouteau county. By appropriate pleadings the various parties set up their respective claims for appropriations made by themselves or their predecessors. The action was tried to the court. Findings of fact were made and filed, and thereafter a decree was entered in conformity therewith. This appeal is from the judgment perfected by the defendant Warren.

The trial court adjudicated to the plaintiff Osnes Livestock Company a first right of 242.6 inches as of July 1, 1883, a second right of 117 inches as of date of June 3, 1896, and a third right of 160 inches as of date of June 8, 1896; to the plaintiff Merrimac Cattle Company 15.40 inches as of April, 1897; and to the defendant Warren 40 inches of Breed and Squaw creeks, tributaries of Cottonwood creek, as of May 10, 1898, and 49 inches as of May 24, 1897, and 215.23 inches as of May 27, 1899.

Other rights subsequent to those of defendant Warren were adjudicated in favor of the plaintiff Osnes Livestock Company, which rights are not here in question. The small right of the plaintiff Merrimac Cattle Company is not here assailed, and hereafter when we refer to the plaintiff, it will relate solely to the plaintiff Osnes Livestock Company. No contention is here involved with reference to the priority or amount of defendant Warren's rights as found by the court.

Generally speaking, it is the broad contention of the defendant that, as to the three rights of the plaintiff, the court was in error in finding and deciding that they were prior to his rights. For the purpose of clarity we shall refer to the first right hereafter as the McDonald right, the second as the Hudson right, and the third as the French right, and shall consider them. so far as practical, in the order named.

The specifications of error on behalf of the defendant all raise the question of the sufficiency of the evidence to support the court's findings and decree with reference to the above rights. In addition the court, as a part of its judgment, found damages in favor of the plaintiff in the sum of $500, and likewise awarded the plaintiff a judgment for costs. Specifications of error are also directed at the correctness of the judgment of the court in awarding damages and costs.

We proceed now to a consideration of the McDonald appropriation. The lands in the township wherein the water was diverted and used under these various rights were unsurveyed until around the year 1899. Julia E. McDonald filed for record her notice of appropriation dated August 24, 1883, claiming a first water right of 300 inches of the waters of Cottonwood creek, reciting therein that she had taken out a ditch on July 1 of that year carrying that amount of water. She made a desert land entry on lands along the creek which were then unsurveyed, on November 5, 1883, which was canceled on October 4, 1887. Julia E. McDonald, together with her husband, on May 2, 1887, executed a quitclaim deed, which was recorded on May 24, 1889, conveying to Charles S. Gibson and Alexander C. Johnson the ranch and "also the irrigating ditches, dams and water rights" of the McDonalds. The conveyance describes other property, as well as the ranch itself, somewhat more in detail. Gibson and Johnson on May 2, 1889, by quitclaim deed recorded on May 24, 1889, quitclaimed to Isaac C. Libbay, Charles H. Merrill, and Elias Milliken a vast area of territory therein described, and also "13 locations of camps, corrals, fences, timber, lumber, irrigating ditches and dams thereon and now in our possession." No further mention appears in the record with reference to Libbay and Milliken.

Subsequently Merrill had a partner, or at least their business relations were akin to that of a partnership, by the name of Libby, and after the land on which the water under this right is and has been used since its inception had been acquired from the patentees, Libby and Merrill conveyed it together with the water right to the plaintiff. It appears that the titles to the lands on which these waters were applied were acquired from the United States, or at least the greater part of them, by persons other than the copartnership prior to their conveyance by it to the plaintiff, although Merrill acquired a small portion of the lands by preemption. Some of them were acquired under the homestead laws, others by desert land entries, and still other portions by preemptions. There is no controversy here over plaintiff's present ownership of these lands. The various filings made by the entrymen, as the result of which patents were issued by the United States, were in the main made during the year 1900; none were earlier than that year.

As we understand the contentions of the defendant, it is conceded that Julia E. McDonald, at the time she initiated her right, was qualified so to do, and that she did at the time found by the court divert waters from the creek and apply them to a beneficial use. It is, however, contended that the plaintiff can trace title to only one-third of this right; that the McDonald right in its entirety was lost as such until after the date of the inception of the Warren rights; and that any water used after the conveyance by Julia E. McDonald, or at least the cancellation of her desert land entry, was not legitimately used until after the inception of the Warren rights.

As we have already observed, after the conveyance by Gibson and Johnson to Libbay, Milliken, and Merrill, the record is silent as to any conveyance affecting the rights of Libbay and Milliken. Defendant contends that by reason of the inability of plaintiff to show any privity between it and Libbay and Milliken, at most plaintiff could only claim one-third of the right owned by Julia E. McDonald. He seeks to invoke the rule frequently announced by this court, namely, that mere possession by one person of a water right originated by another does not show such privity. "In order to make good his claim to the right as of the date at which it was initiated, the possessor must show some contractual relation between himself and the original appropriator." Kenck v. Deegan, 45 Mont. 245, 122 P. 746, 748; St. Onge v. Blakely, 76 Mont. 1, 245 P. 532, 536.

As we understand the contention of plaintiff in response, it is that under the decision in Wills v. Morris, 100 Mont. 514, 50 P.2d 862, we somewhat limited the force of this statement and there held that in the same circumstances the possessor of the land was presumed to be the owner of the right. Such, perhaps, would be the force of our decision if we had said nothing more therein than was expressed in the last paragraph discussing the Don Albee right, but in the first paragraph of the opinion discussing that right we directed attention to the fact that, in addition to the evidence discussed in the last paragraph, it appeared that as to the right under consideration a judgment adjudicating the identical right, and to which the plaintiff Wills and his predecessor in interest was not a party, was in evidence. In prior paragraphs of the same opinion we had held after considerable discussion that such a judgment was evidence of the right, and we there, in light of the facts set forth in the opinion, recognized the presumption contended for by plaintiff, but here there was no proof of a prior adjudication. We did not in the case of Wills v. Morris, supra, nor do we now, intend to depart from the doctrine of the St. Onge Case, nor do we now intend to retreat from our decision in the Wills Case.

Plaintiff further asserts that Merrill was a tenant in common with Libbay and Milliken, and that as such tenant in common his title extended to the entire right as against third persons and that as against such persons he has all of the possessory rights of an absolute owner of the whole, including the right to preserve the entire estate or right held in common; that if he used all the water, only his cotenant could object, and if he conveyed his interest, a stranger could not object to the right of the grantee to use all of the water.

In the early case of Hopkins v. Noyes, 4 Mont. 550, 2 P. 280, 283, this court, speaking generally with reference to the rights of cotenants, said: "One of the incidents of tenantry in common is that each of the cotenants is entitled to the exclusive possession of the entire property as against the whole world, except his co-tenants. Therefore a co-tenant, in prosecuting or defending actions concerning the common property, may treat the same as his own as against every one except his co-tenant."

In Meagher v. Hardenbrook, 11 Mont. 385, 28 P. 451, 452, it appears that a number of cotenants had made an appropriation of water for mining purposes. Later two of the cotenants being less than the whole number, proceeded to use water under this appropriation for purposes of irrigation in excess of their proportionate shares, and were adjudged by the trial court as against the plaintiff who was not a cotenant of this right, to be entitled to...