Pew v. Johnson

• Citation: 88 P. 770,35 Mont. 173
• Parties: PEW v. JOHNSON.
• Decision Date: 11 February 1907
• Court: Montana Supreme Court

88 P. 770

35 Mont. 173

PEW v. JOHNSON.

Supreme Court of Montana

February 11, 1907

Appeal from District Court, Broadwater County; W. R. C. Stewart Judge.

Action by George H. Pew against S. S. Johnson. From a judgment for defendant, plaintiff appeals. Affirmed.

C. B Nolan and Chas. E. Pew, for appellant.

Ed Carleton, for respondent.

BRANTLY C.J.

This action was brought to determine, as between the plaintiff and defendant the right to the use of the waters of Silver creek in Lewis and Clark county. Plaintiff claims the right to the exclusive use of 167 1/2 inches, statutory measurement, as the successor in interest of one Austin and one Dale, who, in 1865, settled upon adjoining portions of section 29, township 11 north, of range 3 west, which is traversed by said stream, and on May 25th of that year made a joint appropriation of water therefrom and established their right by constructing a joint ditch, thereby conveying the waters to their respective premises. At the date of these settlements none of the lands in that neighborhood had been surveyed, and Austin and Dale staked their claims expecting to make the boundaries conform to the lines of the survey when it should be made. The survey was made in 1868 or 1869. Three or four other claims were taken up along the stream during the same year. Austin was highest up the stream. Dale was next below him. Adjoining Dale below, Austin staked a claim for one Bean. Next came one Harold who "took up" a claim in the winter of 1865. The evidence is somewhat vague and indefinite as to what portion of these lands is now owned by defendant, for it does not distinctly show to what extent the boundaries as first fixed by the respective claimants were changed at the time the survey was made. It is clear, however, that the defendant owns a portion of the Bean and Harold lands as they were originally staked, and, possibly, a part of the Dale lands. Next below these claims one Bartlett made a settlement in 1865. The title to all of these lands afterwards passed by patent from the United States to the successors of these original settlers. At present the plaintiff is the owner of the S.E. 1/4 of section 30, and of the S. 1/2 of the N.W. 1/4 of section 29, none of these having been included in the Austin or Dale settlements. The latter subdivision was acquired by the predecessors of plaintiff by deed from the Northern Pacific Railroad Company. In his complaint plaintiff claims 80 inches of the Austin and Dale appropriation by mesne conveyances to him of the lands last mentioned, with appurtenances, through one J. R. Johnson, and the remaining 87 1/2 inches by mesne conveyance of a half interest in the water right through one Kleinschmidt, who bought it from Johnson in 1884, to be used on lands other than any of those mentioned, belonging to Kleinschmidt. He alleges that the defendant has for the past two years wrongfully and without right of title, but under a claim of right thereto, been diverting these waters to his irreparable damage, and asks that his title be quieted and that defendant be enjoined from further interference with them. The defendant in his answer puts in issue most of the material allegations of the complaint. He admits, however, that the Austin and Dale appropriation was made in 1865 as alleged, but denies that it ever consisted of more than 50 inches. He avers that it was made, to the extent of one-half of it, for the use and benefit of the lands now owned by the defendant, to wit, the S.E. 1/4 of section 29, the same being part of the lands therein owned and possessed by said Austin and Dale. He pleads and relies upon three several judgments rendered by the district court of Lewis and Clark county, adjudicating the relative extent and priorities of the rights of the parties thereto, to the use of the waters of Silver creek, some of whom are alleged to have been predecessors, respectively, of the plaintiff and defendant, as prior adjudications of the rights here involved, and a complete estoppel of the claim now made by the plaintiff. He further avers that he has never at any time used more than one-half of the Austin and Dale right, but that he has been using it to that extent and intends to continue to do so, since he is the owner of the right to that extent. He alleges that he and his grantors and predecessors in interest have, for a period of 40 years last past, and in derogation of the alleged exclusive right of plaintiff and his grantors, openly, notoriously, continuously and adversely to the plaintiff and his grantors, used one-half of the Austin and Dale right upon the lands now owned by him. Upon these allegations there was issue by reply. It will be noticed that the only issue presented by the pleadings is as to the right to the beneficial use by defendant of 25 inches of the Austin and Dale appropriation. The court found this issue for the defendant, and thereupon entered judgment dismissing the action. This appeal is from the judgment and an order denying plaintiff's motion for a new trial.

The court found, in substance, that the judgments referred to are res adjudicata as to plaintiff's alleged cause of action that the waters appropriated through the Austin and Dale ditch were intended for use on a portion of the lands now owned by defendant; that no part of them was ever appurtenant to the lands now owned by the plaintiff; that Kleinschmidt had no interest therein which he could convey to plaintiff; and that, even if the predecessors of plaintiff ever owned the exclusive right therein, the defendant and his predecessors had been using them adversely to plaintiff...