Prentice v. McKay

• Decision Date: 11 January 1909
• Citation: 98 P. 1081,38 Mont. 114
• Parties: PRENTICE v. McKAY et al.
• Court: Montana Supreme Court

98 P. 1081

38 Mont. 114

PRENTICE v. McKAY et al.

Supreme Court of Montana

January 11, 1909

Appeal from District Court, Madison County; E. K. Cheadle, Judge.

Action by Octavia Prentice against Caroline McKay and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Clark & Duncan, for appellants.

S. V Stewart and Edmund J. Callaway, for respondent.

HOLLOWAY J.

This action was brought by Octavia Prentice against Caroline McKay and Thomas Galahan to quiet the title of plaintiff to a certain water right, and to secure an injunction restraining the defendants from interfering with the free use and enjoyment of such right by the plaintiff. The court found that the plaintiff was the owner of 40 acres of land in section 18, township 4 south, of range 5 west, in Madison county; that this land is arid, and that 40 miner's inches of water are required for its successful irrigation that in 1893 the predecessor in interest of plaintiff owned the land in section 18 now owned by the plaintiff; that on July 15, 1893, the predecessor of plaintiff constructed a ditch from certain springs and a stream on section 19, and by means thereof conducted 40 miner's inches of water to and upon the land in section 18. Finding No. 5 is as follows "That the said lands with the said water right was thereafter, by mesne conveyance, conveyed to the plaintiff herein, Octavia Prentice." The court also found that ever since the waters were so diverted the plaintiff and her predecessor in interest have continuously used the same for the irrigation of the lands in section 18. From these facts the court concluded that the plaintiff is entitled to an appropriation of 40 miner's inches of the waters of the springs and stream mentioned, and entered a decree quieting the plaintiff's title to the same, and enjoining the defendants from interfering therewith. From the judgment and an order denying them a new trial, the defendants have appealed.

It appears that on and prior to December 11, 1890, S. C Prentice was the owner of the lands in section 19, upon which are the springs and stream mentioned in the findings; that on December 11, 1890, S. C. Prentice and his wife, Octavia, the plaintiff below and the respondent here, executed and delivered to Caroline McKay, the defendant and appellant, a mortgage upon the land in section 19; that on June 2, 1898, Mrs. McKay commenced an action in the district court of Madison county against S. C. Prentice and Octavia Prentice, his wife, to foreclose the mortgage; that such proceedings were had and done in the action that on June 27, 1899, a decree of foreclosure was duly given and made in favor of Mrs. McKay and against S. C. Prentice and Octavia Prentice, which decree provided that the sums of money mentioned therein constituted a valid lien upon the land in section 19 above by virtue of the mortgage so given, and directed a sale of the premises; that a sale thereof was made by the sheriff of Madison county as directed; that at such sale Mrs. McKay became the purchaser; that there was not any redemption from the sale within the time allowed by law; that on February 6, 1900, the sheriff executed and delivered to Mrs. McKay a deed for the premises; and that ever since she has been the owner and in possession of the property. It also appears that some time prior to 1893 S. C. Prentice had made a tree culture entry upon the lands in section 18 above, and the court apparently found that he constructed a ditch from the springs and stream on section 19 to irrigate this land in section 18, although we are unable to find any evidence to justify such a finding. It appears that S. C. Prentice abandoned his tree culture entry, and that his wife, Octavia, made a desert entry upon the same land. We have searched the record in vain for evidence of any sort of a transfer from S. C. Prentice to his wife of any interest in the land or the water right. Even assuming that S. C. Prentice made a valid appropriation of the water in 1893, and assuming, further, but not deciding, that he could have made a valid transfer thereof to his wife, still, in the absence of a showing of a transfer of such right to her, she cannot claim the same by virtue of his appropriation. There does not appear to be any evidence to support finding No. 5 above. If we give to the evidence offered on behalf of the plaintiff that construction most favorable to her, it would seem that in 1893 she went into possession of the whole, or at least a portion, of this 40-acre lot in section 18, and constructed a ditch from these springs and stream; that in 1894 she planted an orchard and irrigated it by means of the ditch dug in 1893; that in 1899 she made a desert entry upon...