Rodda v. Best
| Decision Date | 09 July 1923 |
| Docket Number | 5295. |
| Citation | 217 P. 669,68 Mont. 205 |
| Parties | RODDA v. BEST ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis & Clark County; W. H. Poorman Judge.
Suit by Grant L. Rodda against James Best and others. From a decree for plaintiff, defendants appeal. Modified and affirmed.
Henry C. Smith, of Helena, for appellants.
F. W Mettler, of Helena, for respondent.
The material facts involved in this case are practically undisputed and will be most easily understood by reference to the following plat, which is taken from a map introduced in evidence at the trial:
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Canyon creek comes out of the mountains to the north, flowing in a southerly direction to a point near the northeast corner of section 6, township 12 N., range 5 W., where it turns and runs southeasterly across sections 5 and 8. Little Prickly Pear creek comes in from the west, flowing across the northern part of sections 7 and 8, where the waters of Canyon creek unite with it. The plaintiff has a ranch embracing section 6 upon which he resides. The defendant Best is the owner of the southeast quarter of section 7, and the southwest quarter of this section belongs to Mrs. Holding.
It is not disputed but that in 1882 Joseph Parent and Joseph Hooper made an appropriation of the waters of Canyon creek, and that a ditch was subsequently constructed for the conveyance of some portion of this water down to section 21, township 11 N., range 3 W., M. P. M., being a distance of about 22 miles. At a place about 12 miles from the point of diversion this ditch emptied into Silver creek, which was used as a ditch for a portion of the remaining distance down to section 21. This ditch where it crosses sections 6 and 7 on the plat is designated as the "Gamer Ditch." It is also undisputed that Fred Gamer acquired some interest in this ditch and water right, which was commonly known as the Canyon creek water right. On June 6, 1906, Gamer and his wife conveyed the above-mentioned section 21, together with an undivided one-fourth interest in and to the ditch and water right, to the Grand Lodge Charity Fund, a corporation. This title subsequently passed to the Masonic Home of Montana, a corporation, and on December 30, 1913, the latter corporation sold and conveyed to plaintiff all of its right, title, and interest in and to the Canyon creek water right and to the ditch from Canyon creek to Silver creek, being the interest therein which passed by conveyance from Gamer to the Grand Lodge Charity Fund.
The defendants have water rights out of Little Prickly Pear creek and their ditch, which is designated "Gans and Klein Ditch" on the plat, runs at about right angles to the Gamer ditch down to the point marked "Dam," where it was originally flumed across the Gamer ditch, and the two ditches then ran practically parallel to each other across the southerly part of the south half of section 7. At this place there is a hill or "hog back" projecting across the south line of the southeast quarter of section 7 and the contour of the land is such that only one ditch can be constructed around the same, so that from a place in the Gans and Klein ditch a short distance east of its point of entrance upon the southeast quarter of section 7 it was necessary to carry the water in a flume for several hundred feet. This flume was expensive to maintain, and finally about the year 1920 was washed out, so that the defendants, in order to avoid the expense of rebuilding the flume, cleaned out and improved the old Gamer ditch around the point of the hill from the point on the plat marked "Dam" down to about the point where it crossed the south line of the southeast quarter of section 7, intending to convey their Prickly Pear water through the same for that distance and then dump it back into the Gans and Klein ditch, when this action was commenced by the plaintiff for the purpose of restraining them from making use of that part of the Gamer ditch.
The defendants answered, setting forth numerous affirmative defenses wherein they claimed that the plaintiff's right to the use of the ditch in question had been lost by abandonment, nonuser, and adverse possession.
The case was tried to the court sitting without a jury. After hearing the testimony, the trial judge visited and made a personal inspection of the ditches in question, and subsequently made findings in favor of the plaintiff and entered a decree restraining the defendants from taking possession of or using the Gamer ditch across the south half of section 7, township 12 N., range 5 W., in whole or in part, or at all. From this decree the defendants have appealed to this court.
Counsel for defendants has made numerous specifications of error, but all of them present only the following matters for consideration: (1) Had the plaintiff, before the commencement of this suit, abandoned his rights in the Gamer ditch? (2) Was the plaintiff's right of action barred under the provisions of sections 6432, 6433, and 6434, Revised Codes of 1907 (now sections 9015, 9016, and 9017, Rev. Codes 1921)? (3) Had the plaintiff, prior to the commencement of this suit, lost his rights in the Gamer ditch by nonuser? (4) What was the extent of plaintiff's right in the Gamer ditch?
1. The water flowing down the Gamer ditch was originally conveyed across Little Prickly Pear creek by means of a flume. As early as 1906 this flume was washed out and has never been rebuilt. From that time down to the time of the trial of this action in June, 1922, no water had been conveyed through this ditch south of Little Prickly Pear creek by the plaintiff or his predecessors in interest, nor had they cleaned out the same or made any repairs thereto, and as a result of these years of disuse the ditch had gotten into a delapidated condition, had become filled with growths of underbrush and small trees, and could not be used for the purpose of conveying water without a great amount of cleaning out and repairs.
On the other hand, as appears from the foregoing, Fred Gamer owned the Canyon creek water right and ditch down to June 6, 1906. In 1904 or 1905 his tenant used the water through the ditch for irrigation purposes on section 21. On June 6, 1906, Gamer and wife conveyed section 21, together with the water right and ditch, to the Masonic Home. On May 14, 1907, by an instrument in writing, the Masonic Home authorized the plaintiff to take possession of the ditch and water right and to use the same in consideration of his keeping the ditch in repair, which condition was to continue until such time as it should desire to use the same upon its ranch. So far as the record discloses, this condition continued down to the month of December, 1913, when the plaintiff became the owner of the water right and the ditch as far down as Silver creek by purchase. During this interval the plaintiff used the water on his ranch north of Little Prickly Pear creek, and after the purchase of the ditch and water right continued to use it in the same manner.
The plaintiff testified that he owned about 700 acres of land lying north of Little Prickly Pear creek, susceptible of irrigation through the Gamer ditch; that he had no land south of this creek and no present use for the ditch or water except on his own land, and never had had; that there was not enough water available under this right to irrigate the lands which he already owned; that he intended at some time in the future to acquire reservoir sites higher up in the mountains and to impound water and convey the same to his ranch, and if there should be more thus acquired than was necessary for his use, to run it down through the Gamer ditch and sell it to others who might want to purchase it below the point in controversy in this action. The court found that plaintiff had selected two sites for such reservoirs, and that he eventually intended to use the ditch for the above-mentioned purposes, and plaintiff testified that he had had this plan in contemplation since prior to the time when he purchased the ditch and water right. The court further found that in 1914 Mike Geier, a tenant of Mrs. Holding in possession of her lands in the southwest quarter of section 7, plowed up and obliterated a part of the ditch through said land, but that the same was done by permission of plaintiff under agreement with him that the ditch would be restored upon his demand. These last-mentioned facts evince a clear intent on the part of the plaintiff and his predecessors in interest not to abandon either the ditch or water right.
To constitute abandonment, an intent to abandon must exist. Norman v. Corbley, 32 Mont. 195, 79 P. 1059; Thomas v. Ball, 66 Mont. 161, 213 P. 597; Moore v. Sherman, 52 Mont. 542, 159 P. 966. The court found that, as a matter of law, plaintiff had not at any time abandoned his right to the possession and use of either the ditch or water right, and this finding is justified upon the record as presented here.
2. Defendants also take...
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