Shammel v. Vogl

• Decision Date: 17 September 1964
• Docket Number: No. 10571,10571
• Parties: Lee SHAMMEL, Plaintiff, Appellant and Respondent, v. George VOGL and Elizabeth Vogl, his wife, Defendants and Appellants.
• Court: Montana Supreme Court

Page 103

396 P.2d 103

144 Mont. 354

Lee SHAMMEL, Plaintiff, Appellant and Respondent, v. George VOGL and Elizabeth Vogl, his wife, Defendants and Appellants.

No. 10571.

Supreme Court of Montana.

Sept. 17, 1964.

Rehearing Denied Nov. 16, 1964.

Peter L. Rapkoch, County Atty., Lewistown, Hall, Alexander & Kuenning, Great Falls, Edward C. Alexander (argued), Great Falls, for plaintiff and respondent.

Anderson, Symmes, Forbes, Peete & Brown, Billings, Arthur P. Acher (argued), Helena, Charles E. Marshall (argued), Lewistown, Weymouth D. Symmes (argued), Billings, for appellants and defendants.

JAMES T. HARRISON, Chief Justice.

This action is one to quiet title to a water right and its appurtenant ditch easement, hereinafter referred to as the Weidman right, and involves the East Fork of Big Spring Creek in Fergus County, Montana. The Creek flows north across the land of the defendants (George and Elizabeth Vogl) and then turns east a short distance onto the land of one Bacon before continuing to flow north and onto the land of the plaintiff (Lee Shammel). Plaintiff's land is, therefore, downstream of the defendants'. The legal descriptions of the lands are quite checkered, but plaintiff's land lies in parts of Sections 10, 11, 14, and 15 and defendants' land lies in parts of Sections 22, 23, 26, and 35; all in T 14 N, R 19 E, MPM.

Shammel, the plaintiff, purchased his land in 1959 and began to use water under the Weidman appropriation to irrigate. During that year and again in 1960, he irrigated his land by means of the Weidman ditch. In 1961, defendant, Vogl, dozed soil into part of the 600-foot section of the ditch that runs across the northern part of his land, and the plaintiff instituted this action.

The suit was brought to quiet the enjoyment of the Weidman water and ditch right, to establish the incidental privileges of entering the land of the defendants to maintain the diversion dam and headgate, and to enjoin the defendants from interfering with these rights of the plaintiff.

The defendants' answer concedes the validity of the Weidman water right, but alleges that the ditch right had been abandoned for some 30 years. Defendants also assert their rights to two other water rights located on their property, and upstream from the Weidman water right, being the Sears right and the Weldon right. The Sears right stems from an alleged appropriation of 500 inches made by one Sears on August 22, 1882, placed of record August 13, 1888. The Weldon right consists of an alleged appropriation of 500 inches on July 14, 1886, recorded August 13, 1886.

The plaintiff filed a reply to defendants' answer denying the validity of the filed notices of appropriation for the Sears and the Weldon water rights.

The case was tried before the court, sitting without a jury. The court held that the plaintiff was the owner of the Weidman water right of 325 inches as of August 31, 1886, that defendants' land is subject to a superior and dominant easement of the plaintiff to dam and divert waters of the creek, and that the plaintiff has a ditch right-of-way to convey the water across the defendants' land and onto his own. Plaintiff was also allowed the right to enter, inspect, clean or otherwise maintain the dam, headgate, and ditch. The defendants were found to be the owners of the Sears water right of 500 inches, and that this priority dates back to August 22, 1882. No mention was made in the decision of the defendants' alleged interest in the Weldon water right.

Both the plaintiff and the defendants appeal from that judgment. The defendants appeal on the grounds that the court erred in finding that the Weidman ditch right had not been abandoned. Defendants also assert a new objection to the recognition of the ditch right in a claim that the course of the ditch had been substantially altered by plaintiff, causing forfeiture of the ditch right. Defendants also urge that the Weldon right should have been recognized. As respondent to these objections, the plaintiff contends that no issue of forfeiture of the ditch right by alteration of its course was presented to the court and that, in any event, there was no substantial alteration and no forfeiture. Plaintiff also contends that court property found no abandonment. Finally, plaintiff, as respondent, contends that the court was justfied in not recognizing the Weldon right because the notice of appropriation was not verified as the law requires. It appears the notarial certificate is dated 1885, but the notice refers to acts purportedly done in 1886. As appellant, the plaintiff contends that the Sears right should not have been recognized. The argument is that the water right cannot be sustained as a statutory appropriation because the Act authorizing such appropriations was not enacted until 1885, three years after the recording of notice of appropriation by Sears. Secondly, it is argued that even if that Act does apply, the Sears declaration was acknowledged only and not verified by the appropriator as required by the Act. Finally, it is urged that though there could have been an appropriation based on actual appropriation and beneficial use, these elements are missing and the water right ought not be sustained on this basis either.

The defendants' answering brief to the plaintiff's appellate brief states that the Sears water right was sufficiently proven and that cases have held that an appropriation notice placed of record before the 1885 Act may serve as evidence of a valid appropriation.

Because of the numerous issues presented by both parties the Weidman water and ditch rights, the Sears water right, and the Weldon water right will be discussed separately.

On August 31, 1886, John L. Weidman appropriated 325 miner's inches of water from the East Fork of Big Spring Creek to irrigate land in Sections 11 and 14, Township 14 North, Range 19 East. A diversion dam and headgate was used and the water was conveyed in a ditch five feet wide on top by sixteen inches deep. The water right notice was duly recorded on September, 23, 1886, and appears on the records of Fergus County. The ditch and right-of-way therefor are also claimed by this notice.

The record and exhibits show that the diversion is effected just east of the dividing line of Sections 14 and 15, but that the presently-established correct line runs over the center of the headgate and that immediately afterwards the ditch runs north and west for some 600 feet through the NE 1/4 of SE 1/4 of Section 15. This little stretch of land is now owned by the defendants, but in 1886 it was a part of the public domain; and the grant by the United States to defendants' predecessor in 1905 reserved to Weidman the ditch right-of-way.

The Weidman land was increased by subsequent patents from the United States. The record shows the intermediate owners of the Weidman lands together with the water and ditch right to be as follows: In 1889 Lang purchased the land from Weidman, resided thereon until selling it to Dwight Smith in 1945. Smith resided there for eight years, selling to Magnus Johnson in 1953. Johnson resided on it for one year and sold to Jess Howe in 1954. Jess Howe sold to plaintiff Shammel, in 1959, and Shammel has resided thereon ever since.

The contention of the defendants is that the ditch was not used during many lengthy stretches of time from 1886 to the present time, and that the 600 feet of ditch right over defendants' land has been thereby abandoned.

In order for there to be abandonment there must be an intent to abandon. Rodda v. Best, 68 Mont. 205, 217 P. 669. An intent to abandon has not been found from mere nonuser. Abandonment has been held to mean a voluntary act involving a concurrence of act and intent. The act is the relinquishment of possession and the intent is a manifestation not to resume beneficial use of it. Neither of the elements alone is sufficient. Musselshell Valley F. & L. Co. v. Cooley, 86 Mont. 276, 295, 283 P. 213.

The testimony presented by the defendants is that according to the defendant Vogl the ditch was not carrying water from 1939 to 1956. One Kramlich, who resided on Big Spring Creek from 1914 to 1939 testified for defendants that the ditch was not used for that whole period of time. One Richter testified that he was hired by Jess Howe in 1956 to clean out the ditch with a dozer and that there wasn't much of a ditch to follow in cleaning it out. Burch testified that he could not recall irrigating from 1925 to 1934 and that in the 'wet' year of 1955 he helped put up hay in the ditch for Jess Howe; hence, it was not being used to irrigate in that year. Ray Vogl, defendants' son, testified he lived in the ditch area since 1950 and that until 1956 had been no use of the ditch for irrigation.

The above is the crux of the case for abandonment presented by the defendants. The court found that the ditch had not been abandoned, and the issue on appeal is whether the court could so find. The testimony presented by the plaintiff may be summarized as follows:

Fishburn testified he fished in the water in the ditch from 1912 to 1917 with the Lang boys. Stephens irrigated for Lang using the ditch, from 1918 to 1919. Hall occasionally crossed the ditch from 1921 to 1925 and there was water in it being used for irrigation. He also testified that he saw water in the ditch in 1932. Jackson had cattle near the ditch in 1934 and 1935, and saw water in the ditch and knew Lang was irrigating with it. O'Reilly saw water in the ditch in 1926, 1932-33, and again in 1944, during visits to the Lang place. Bacon, an adjacent landowner, saw irrigation take place place in 1941. Dwight Smith, who owned the present Shammel place from 1945 to 1953 testified that only because the seasons were 'wet' did he not attempt to use the ditch for irrigation. He also testified that he had tried a sprinkler system and had studied use of the ditch and relocation of it by a Soil Conservation Service survey. In 1...