Smith v. Denniff

• Decision Date: 12 March 1900
• Citation: 60 P. 398,24 Mont. 20
• Parties: SMITH v. DENNIFF.
• Court: Montana Supreme Court

60 P. 398

24 Mont. 20

SMITH v. DENNIFF.

Supreme Court of Montana

March 12, 1900

On rehearing. Former opinion (57 P. 557) reversed, and judgment below reversed.

PIGOTT J.

After the opinion heretofore rendered in this case (23 Mont. 65, 57 P. 557), the court of its own motion granted a rehearing. Additional briefs and oral arguments have been filed and made, and we are satisfied upon further consideration that the conclusion announced in the former opinion is erroneous. The ultimate question presented for decision is whether a certain water right is appurtenant to a certain parcel of land. As preliminary to the determination of this question it is necessary to investigate the nature of a water right how title to the same may be acquired, the character of its ownership, and its relation to other real property.

1. A water right may be defined to be the legal right to use water. The right to the use of running water is a corporeal right or hereditament which follows or is embraced by the ownership of riparian soil. It is a corporeal right running with riparian land. Hill v. Newman, 5 Cal. 445; Cary v. Daniels, 8 Metc. (Mass.) 480. A water right can therefore be acquired only by the grant, express or implied, of the owner of the land and water. The right acquired by appropriation and user of the water on the public domain is founded in grant from the United States government as owner of the land and water. Such grant has been made by congress. Wood v. Water Co., 122 Cal. 152, 54 P 726; Welch v. Garrett (Idaho) 51 P. 405. This grant by the government applies, however, only to the public domain owned by the United States. Note to Heath v Williams, 43 Am. Dec. 280 (s. c. 25 Me. 209). Therefore, where the absolute title to riparian soil on a stream has passed from the United States before any right to the water by prior appropriation has become vested in any person, no such right can be acquired afterwards under the grant of congress; and the common-law rule as to the rights of riparian owners would apply, were it not for the fact that the state of Montana has by necessary implication assumed to itself the ownership, sub modo, of the rivers and streams of this state, and, by section 1880 et seq. of the Civil Code, has expressly granted the right to appropriate the waters of such streams, which right, if properly exercised in compliance with the requirements of the statutes, vests in the appropriator full legal title to the use of such waters by virtue of the grant made by this state as owner of the water. But this privilege or right to appropriate the water of a stream can in any and every case be taken advantage of or exercised only by one who has riparian rights, either as owner of the riparian land, or through grant of the riparian owner. A trespasser on riparian land cannot lawfully exercise there any right to such water or acquire any right therein by virtue of section 1880 et seq. of the Civil Code. Land Co. v. Hancock, 85 Cal. 219, 24 P. 645. One may not acquire a water right on the land of another without acquiring an easement in such land. Water Co. v. Forbes, 62 Cal. 182. And an easement is an interest in land that cannot be created, granted, or transferred except by operation of law, by an instrument in writing or by prescription. Section 1500, Civ. Code; Great Falls Waterworks Co. v. Great Northern Ry. Co., 21 Mont. 487, 54 P. 963. Nothing here said is to be understood as a modification of the doctrine of McDonald v. Lannen, 19 Mont. 78, 47 P. 648, or of Wood v. Lowney, 20 Mont. 273, 50 P. 794. The right to appropriate water on the land of another for a public use may be obtained through condemnation proceedings under the right of eminent domain. Water Co. v. Forbes, supra. In California it cannot be so obtained for a private use. Lorenz v. Jacob, 63 Cal. 73. Under section 15 of article 3 of the constitution of Montana, the use of appropriated water is made a public use. Ellinghouse v. Taylor, 19 Mont. 462, 48 P. 757. By section 1880 et seq. of the Civil Code the right is conferred upon any one to make a valid appropriation of water on the unsold state lands. Wood v. Water Co., supra. But such permission can and does apply only to lands owned by the state. As owner of the stream, it has granted the right to appropriate the water of the stream, yet it does not pretend to legalize the exercise of such privilege, in violation of the vested rights of other landowners. As well might it be said that by reason of the game laws, permitting all persons to fish in the streams of this state, it therefore follows that any one has a vested right to exercise this privilege wherever there is a stream, in defiance of the vested rights of the property owners; that is to say, by reason of the game laws a landowner has no rights which a fisherman is bound to respect. The mere statement of such a proposition is a demonstration of its fallacy. It is therefore apparent that absolute legal title to a water right can only be acquired by grant, express or implied, of the riparian owner of the land and water. It may be remarked, obiter, that the common-law doctrine of riparian rights assured to each riparian owner the right to the reasonable use, without substantial diminution in quantity or deterioration in quality to the detriment of other riparian proprietors, of the water of a stream flowing by or over his land. The doctrine of "prior appropriation" confers upon a riparian owner, or one having title to a water right by grant from him, the right to a use of the water of a stream which would be unreasonable at the common law, and to this extent the doctrine of prior appropriation may be said to have abrogated the common-law rule.

2. Section 1078 of the Civil Code defines an "appurtenance" as follows: "A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way, or water course, or of a passage for light, air, or heat from or across the land of another." A "water course from or across the land of another" is an easement, and by reference to section 1250 of the Civil Code it is plain that in the contemplation of the Code an appurtenance to land is in any and every case an easement. For example: A. owns a parcel of land, to irrigate which he has lawfully appropriated, and by right is using, water. The ditch through which the water is conveyed is also owned by him, and is partly upon his land and partly upon the land of B. The water right is an appurtenant to A's land, and that part of the ditch which is upon B.'s land is an easement of A. therein, and is also appurtenant to the land of A., but that part of the ditch which is upon A.'s land is not appurtenant thereto, but is part and parcel of the land itself. A legal appropriator of water may change the place of its use, and may use the water for other purposes than that for which it was originally appropriated. Section 1882, Civ. Code; Woolman v. Garringer, 1 Mont. 544; Wimer v. Simmons, 27 Or. 1, 39 P. 6; Fuller v. Mining Co., 12 Colo. 12, 19 P. 836. The right thus acquired to take water from or over the land of another is therefore in the nature of an easement in gross (Civ. Code, § 1251, subd. 6; Bank v. Miller, 7 Sawy. 168, 6 F. 545; De Witt v. Harvey, 4 Gray, 488; Goodrich v. Burbank, 12 Allen, 462), which, according to circumstances, may or may not be an easement annexed or attached to certain land as an appurtenance thereto.

For the purpose of illustrating the practical application of the foregoing principles, we shall consider a few cases of common occurrence:

(a) A. has absolute title in fee to riparian land. Under the statutes of Montana he is clothed with the right, by compliance with the provisions of the statute, to appropriate a water right, subject, of course, to the vested rights of prior appropriators. Now, being the owner of riparian land, he can, as has been shown, legally exercise this privilege on his own land; and, when he has perfected such inchoate right by fulfilling the requirements of the statute, the legal title to such water right becomes vested in him,--not, however, by reason of any common-law riparian rights as owner of the soil, but by reason of statutory grant. Title to the land and title to the water right are in A.'s case two distinct things, each derived from a separate source. The question now presents itself, is the water right thus acquired by A. an appurtenance to the land of A. upon which it is used? We have already attempted to show that an appurtenance to land under the laws of Montana must be an easement. In this case A. owns the land bordering on the stream as well as under it. His water right and ditch are on his own land, and as a servitude or easement thereon cannot be held by the owner of the servient tenement (section 1254, Civ. Code), and, as a servitude is extinguished or merged by the vesting of the right to the servitude and the right to the servient tenement in the same person (section 1260, Civ. Code), it might seem as if it were impossible that A.'s water right and ditch could be an appurtenance to A.'s land. So far as A.'s ditch on his own land and the water right in it are concerned, it is self-apparent that they cannot be easements, and they are therefore not appurtenant to the land. They are part and parcel of the land. The right to the use of the running water (that is, the right to appropriate water on one's own land) is a corporeal hereditament; but the water when once appropriated includes and comprehends an incorporeal hereditament, to wit, the right to have the water flow in the stream, without diminution or deterioration, to the head of the ditch or place of diversion,--an easement in the stream, and a servitude upon upper riparian lands.

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