St. Onge v. Blakely
| Decision Date | 19 March 1926 |
| Docket Number | 5820. |
| Citation | 245 P. 532,76 Mont. 1 |
| Parties | ST. ONGE et ux. v. BLAKELY et al. |
| Court | Montana Supreme Court |
Rehearing Denied April 2, 1926.
Appeal from District Court, Silver Bow County; O. F. Goddard, Judge.
Action by F. L. St. Onge and wife against Charles U. Blakely and others. From the decree, Charles U. Blakely and another perfected separate appeals. Affirmed.
A. C McDaniel, N. A. Rotering, John A. Shelton, and Wm. N. Waugh all of Butte, for appellants.
E. B Howell and William Meyer, both of Butte, for respondents.
This action was commenced by F. L. St. Onge and Eliza St. Onge against Charles U. Blakely, Lynnie F. Boyce, and the city of Butte to obtain a decree fixing and determining the rights of the respective parties in and to the waters of Blacktail Deer creek in Silver Bow county. The stream flows successively through the lands of Blakely, Thompson Park, owned by the city, the lands of Boyce, and lastly through the lands owned by the plaintiffs. The pleadings are in the usual form in such actions and allege ownership of fertile but semiarid lands and the continued use thereon of the amount of water claimed by each of the respective parties since the date of appropriation, and set out the alleged rights of the claimants as follows:
The plaintiffs claim the right to the use of 150 inches of the waters of the stream by virtue of an appropriation made by their predecessors in interest on January 26, 1877. Defendant Blakely claims the right to the use of 140 inches of the waters of said stream, appropriated by his predecessors in interest on June 1, 1899, and as a second cause of action claims the prior right to the use of such water by adverse user and prescription dating from the year 1892, and, in this connection, alleges that the rights of all the other parties to the suit are, as to him, barred by the statute of limitations. Defendant Boyce claims rights initiated by appropriation (1) by Maxime Virnoche November 15, 1878; (2) by J. A. Cosby in the year 1878; (3) by John H. Curtis, Green Majors and James R. Boyce, July 8, 1885; and (4) by this defendant on September 9, 1891, which last appropriation is for 1,000 inches and includes all former appropriations. The city of Butte claims the right to use 150 inches of the waters of said stream by virtue of an appropriation made by its predecessors in interest in the year 1869.
Each of the defendants alleges that, if any right was initiated by the predecessors in interest of the plaintiffs, such right was abandoned and lost by nonuser between 1882 "and the middle nineties." By stipulation filed, all parties agreed that the "affirmative allegations of each party should be deemed denied by the remaining parties."
At the close of the trial each party requested the court to make written findings and submitted proposed findings of fact, and thereafter the court made and filed its findings of fact and conclusions of law, and, at the same time, made and entered its decree awarding to the several parties to the action the following rights:
(1) To the plaintiffs jointly, 87 miner's inches of the waters of Blacktail Deer creek and its tributaries, for use upon the lands described in the complaint, as of August 17, 1885, "prior and superior to the use thereof of each and all of the defendants."
(2) To the defendant Lynnie F. Boyce, 90 miner's inches of the waters of said stream for use upon the lands described in her cross-complaint, as of date September 9, 1891, "superior to the use of all parties other than the plaintiffs."
(3) To Charles U. Blakely, 50 miner's inches of the waters of said stream for use upon the lands described in his cross-complaint, as of date May 1, 1892, and an additional 59 miner's inches of said waters as of the date of the commencement of this action.
(4) To the city of Butte, for use in Thompson Park, all the remaining flow of said stream and its tributaries, after the rights of all other parties to the action "are satisfied and fulfilled."
These provisions conform to the findings of fact, with the exception of the date of the initiation of plaintiffs' right and certain findings respecting the Boyce right. As to plaintiffs' right the findings are to the effect that, on or about January 26, 1877, the predecessors in interest of plaintiffs made a valid appropriation of the waters of said stream by means of a ditch with a capacity of 183 miner's inches, and that, by mesne conveyances, plaintiffs became the owners of said right on August 17, 1885. Immediately after the filing of the findings of fact and of the decree, plaintiffs' counsel moved the court to correct the decree by substituting therein "January 26th, 1877," in lieu of "August 17th, 1885," and each of the defendants moved the court to set aside the findings made and substitute therefor his or her proposed findings. After hearing the several motions, the court granted the motion of plaintiffs and corrected the decree, and thereupon denied the motion of each of the defendants. From the judgment as corrected, the defendants Blakely and Boyce then perfected separate appeals.
Defendant Blakely makes 38 assignments of error, and defendant Boyce 39. It will not be necessary to set out these assignments, as the great majority of them challenge the sufficiency of the evidence to support specific findings, and, in their entirety, they raise only the questions hereinafter discussed.
The evidence is voluminous, comprising more than 1,000 typewritten pages of the transcript and but a brief synopsis of the pertinent portions can be included in this opinion.
1. Had the court authority to correct its decree on motion of the plaintiffs? By its findings the court prescribed what the judgment should be; having found that the plaintiffs' right was initiated in 1877, the declaration in the decree that their right should date from August 17, 1885, was not supported by the findings and did not "express what was actually decided," and was, in effect, a mere mistake in drafting the decree. While a judgment once rendered as intended becomes final and can be revised or corrected only on appeal or on motion for a new trial (Whitbeck v. Montana Central Ry.
Co., 21 Mont. 102, 52 P. 1098; State ex rel. Smith v. District Court, 55 Mont. 602, 179 P. 831), courts have the power to correct or amend their judgments to the end that they will express what was actually decided or to grant the relief that was intended to be granted originally (Keene v. Welsh, 8 Mont. 305, 21 P. 25; State ex rel. McHatton v. District Court, 55 Mont. 324, 176 P. 608; Barber v. Briscoe, 9 Mont. 341, 23 P. 726; State ex rel. Smith v. District Court, above). The situation here was analogous to that in Keene v. Welsh, above, wherein it was held that a decree determining the rights of the several parties to the use of the waters of a stream was properly amendable on motion to the extent that the relief granted may be such as was intended.
2. The defendants contend that the evidence adduced is insufficient to warrant the court's finding that F. L. St. Onge is the successor in interest of the original appropriators of the water he claims. The evidence on this question discloses that on January 26, 1887, Joseph V. Suprenant and Antoine Marceau made an appropriation of all of the waters of Blacktail Deer creek and Little Blacktail Deer creek, a small tributary of Blacktail, for use in propelling a water-power arastra on the lands now owned by plaintiffs; that they operated the arastra up to the fall of 1882, using the flow of both creeks, and in addition used some part of the water for irrigation upon the land. In the year 1882 the land, arastra, and water rights and ditches were sold at sheriff's sale on foreclosure proceedings, and no redemption thereof was had. The purchaser at the sheriff's sale received a deed and thereafter conveyed the property to one A. J. Davis. On August 17, 1885, Davis entered into a conditional sale contract with plaintiff F. L. St. Onge, by the terms of which Davis agreed to sell to St. Onge the land, arastra, and other improvements and the water right and ditches for the sum of $2,000, to be paid in monthly installments of $100 each. This contract contained no provision for forfeiture, and the only reference therein to nonpayment of the installments is that, if the notes were not paid at maturity, they should thereafter pay interest at the rate of 1 per cent. per month. No deed was to be executed until the full purchase price was paid. On the execution of the contract Davis gave to St. Onge a written order directing his agent in charge of the property to deliver possession thereof to St. Onge. St. Onge took possession and has ever since held the same; he paid $800 on the purchase price, when he discovered that Davis had no title to the land. He thereupon refused to make further payments, and Davis thereafter never demanded payment. St. Onge continued to use the water on the land and thereafter secured a homestead patent to one quarter section thereof and a patent from the state of Montana for a second quarter section, and Eliza St. Onge secured patent from the state to the third quarter section. Asked what he received for the money he paid Davis, St. Onge testified that he got nothing as to the land, but he "got" the arastra, the improvements, the fences and the water right and ditches and reservoir.
On these facts, the court made the following finding, on which error is predicated:
"While the title to the lands was never conveyed to plaintiff F. L. St. Onge, St. Onge, by virtue of the contract of Davis and the payment of a portion of the consideration, and the continued possession, taken under the conditional sale, acquired a right to all of the property so sold to him by Davis,...
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