Quigley v. Birdseye

• Decision Date: 18 January 1892
• Citation: 28 P. 741,11 Mont. 439
• Parties: QUIGLEY v. BIRDSEYE et al.
• Court: Montana Supreme Court

28 P. 741

11 Mont. 439

QUIGLEY v. BIRDSEYE et al.

Supreme Court of Montana

January 18, 1892

Appeal from district court, Deer Lodge county; D. M. DURFEE, Judge.

This was an action by John R. Quigley against Charles G. Birdseye and others to recover damages for the diversion of water claimed by the plaintiff for irrigation. There was judgment for plaintiff, and defendants appeal. Modified and affirmed.

The other facts fully appear in the following statement by DE WITT, J.:

The plaintiff brought his action for damages for the taking and diverting of water claimed by him. He also asked that the defendants be enjoined from interfering with his water-right. The plaintiff admitted the right of the defendants to 200 inches of the water of Ophir creek, said right dating from an appropriation in the year 1865. Subject to such right, the plaintiff claimed 250 inches of said water, alleged to have been appropriated in the year 1866. The water of the creek during the portion of the year when these parties required it for their uses, was heavily charged with tailings from mining operations, above both of the parties, and independent of their rights. Defendants took their water from the creek by the Tiger ditch. Two hundred and twenty-seven feet below defendants, plaintiff took his water out by the China ditch. The fall from defendants' head to plaintiff's was eight and one-half feet. Each party had a dam. It seems that these dams had a twofold office,--one was to raise the water and throw it into the heads of the ditches; the other was, in order to form a pool in which the tailings from above might settle, so that they would not be carried into the ditches and fill them up. When there was a considerable head of water on, and the mining operations above were extensive, the load of tailings was very heavy, consisting, not only of fine stuff, but of rocks as large as a man's head. Some of the witnesses called this matter "slum," and the dams "slum dams." During active operations above these parties, the dams quickly filled with tailings. It then became necessary to open the dams for a few minutes, and let the water rush out, and carry the tailings down the creek. This operation was called "slumming." It was claimed that this slumming could be successful only when the two dams were opened together, or that defendants' dam could be slummed only when plaintiff's gate was also open, so that the water and tailings could sweep clear through; that, if plaintiff's dam was closed when defendants slummed, the tailings would back up against defendants' dam and gate, and impede their operations. It would seem that if both parties slummed at once there was no trouble. It would seem, further, that there was a want of harmonious action between the parties in this matter. Defendants claimed that they could not use their water-right at all, unless plaintiff's dam were opened so that defendants could discharge their tailings. The plaintiff's complaint was that defendants opened his gate, and kept it open, and finally tore it out, and threw it into the creek, so that it floated away; the result of which was that the water did not go into plaintiff's ditch, and so interfered with plaintiff's enjoyment of his rights and that thereby, for several seasons, plaintiff got no water at all, and was greatly damaged. He asked judgment for $1,000 damages, and also an injunction to restrain defendants from interfering with his water-right. Plaintiff concedes to defendants the prior right to 200 inches of water, and claims for himself a subsequent right of 250 inches. The jury found only a general verdict for $25 damages in favor of plaintiff. The court made other special findings. The defendants appeal from an order denying a new trial and from the judgment.

J. C Robinson and Forbes & Forbes, for appellants.

Cole & Whitehill, for respondent.

DE WITT, J., (after stating the facts.)

We will examine the points made by appellants in the order in which they have presented and discussed them.

1. The court refused to give the following instruction requested by the defendants: " Fourth. The plaintiff is required to prove any damages claimed to a reasonable certainty; the jury cannot give damages on mere speculation. That, to entitle the plaintiff to damages for loss to his garden, it is necessary that there should be proof of the amount of vegetables he would have raised with a supply of water, and the value of such vegetables, after deducting the cost of planting and raising the same,--that is, he can recover for only the net profits thereof; and, unless the above facts have been proven, the jury must disregard all evidence as to damages to his garden and crop of vegetables." The plaintiff asked damages in the amount of $1,000. The jury gave him $25. We have said in Carron v. Wood, 10 Mont. 508, 26 P. 388: "If witnesses testify as to what amount of damage resulted from the destruction of a certain thing, measuring the damage in money, the witnesses are subject to all proper inquiries as to how they arrive at the value stated; as to whether or not expenses involved in connection with the subject have been considered in arriving at the value or damage stated, and all other pertinent inquiries would be proper; and, if a witness states a fact which is the result of considering several conditions to arrive at a truthful statement, is it not to be presumed that such conditions have been considered by the witness? At any rate, as before observed, the witness may be questioned as to whether or not he has considered in detail the conditions or circumstances which affect the fact stated." The plaintiff in the case at bar testified that the market value of the water as it was being sold was five cents per inch. This was not disputed. At this rate, the witness said that the damage would amount to about $150 per year for two or three years that he was deprived of the water. He testified as to the destruction of his garden, and describes in detail the crops that he had planted, and what they were worth, and that he was wholly deprived of them by the want of the water for two or three years. The defendants had opportunity to cross-examine. The defendants asked that all of the plaintiff's evidence as to damages be stricken out, and their instruction refused practically asked the same thing. Again, it is to be observed that the verdict for $25 under the circumstances, is more of the nature of a verdict for nominal than special damages. The damages sought to be proved amounted to some $400, and, as alleged, to $1,000. Under these circumstances, $25 would seem to be nominal damages. If plaintiff's rights were invaded, he was entitled to nominal damages. This seems to be the view that the jury took of the matter of damages. In consideration of the fact that defendants had opportunity to cross-examine as to the details of the damages claimed, and that the verdict seems to be for only nominal damages, we are of the opinion that it appears that the defendants were not injured by the court's refusal to give instruction No.4.

2. In the chain of title of plaintiff to the ditch and water-right which he claims, (the China ditch,) appear the names of some alleged Chinamen as grantees from the older owners of the ditch, and as grantors to the plaintiff. Defendants claim that, under the doctrine of Tibbitts v. Ah Tong, 4 Mont. 536, 2 P. 759, and Wulf v. Manuel, 9 Mont 279, 23 P. 723, Chinamen cannot take real estate, and therefore that the grant of this water-right and ditch to the Chinamen was an abandonment by the original owners, and hence plaintiff took no title from the Chinamen. In those cases the real estate in question was mining claims upon the public domain of the United States. In Wulf v. Manuel we endeavored to make it clear that such mining claims were a class of real estate sui generis, and the doctrine of those cases was placed upon the peculiar character of the real estate in question, by virtue of the provisions of the United States statutes which opened the mineral lands of the United States to exploration and purchase by citizens of the United States and those who had declared their intentions to become such. We said in Wulf v. Manuel, page 285, 9 Mont., and page 725, 23 P. Rep.: "No other persons may apply to purchase [such mineral lands] from the United States. The mineral lands of the government are not open to exploration, occupation, or purchase by aliens. An alien may not even take or hold real estate of this class. ***" Let it be conceded, in the case at bar, that the Chinamen who were a link in the chain of plaintiff's title were aliens. Let it be conceded that the ditch and water-right were real estate. It was not real estate of any such nature as are possessory rights to mining claims upon the public domain of the United States. Its possession, or its right of possession, was not restricted, as are said mining rights, by a special statute of the United States, declaring that none should occupy or purchase it but citizens of the United States, and those who had declared their intention to become such. The inapplicability of the doctrine of Tibbitts v. Ah Tong and Wulf v. Manuel to real estate not clothed with the peculiar characteristics of possessory rights to mining claims is apparent. Therefore we have simply this proposition: The chain of title is A. to B. to C. to D. D. is in court with his title attacked because C. was an alien. The real estate is not a possessory right to a mining claim. All that is to be considered is therefore whether an alien may take real estate, and hold the same until office found, against collateral attacks by third persons other than the sovereign, and whether such alien, in the absence of forfeiture by office found, may convey title to his...