Stetson v. Youngquist

Decision Date08 July 1926
Docket Number5935.
CourtMontana Supreme Court

Appeal from District Court, Missoula County; Theodore Lentz, Judge.

Action by H. E. Stetson against Josephine Youngquist and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Elmer E. Hershey, of Missoula, for appellant.

S. C Skulason, of Thompson Falls, for respondents.


This is an action involving an easement for a ditch which the plaintiff Stetson claims to have obtained by prescription across the lands of defendants Josephine Youngquist and Joseph Youngquist. The object of the suit is to enjoin the defendants from interfering with plaintiff's use of the ditch. The ditch is a lateral leading from a main ditch which diverts water from Rattlesnake creek in Missoula county. The lateral crosses lot 13 of Cobban's Camp Sites, owned by the defendants, and runs to lots 6 and 10, owned by the plaintiff.

Plaintiff purchased his land in 1909, and in 1911 dug the ditch with which he irrigated that year and each year following. Plaintiff testified that he did not go upon lot 13 with any one's permission; no one was living there at the time and his understanding was that he had a legal right to do so. The real estate man through whom he bought his lots told him he had the right to run the ditch over the lands between his place and the main ditch, but plaintiff's informant did not represent the owners of the intervening lands.

Some time after the ditch was in use, Carl Peterson, one of the owners of lot 15 and a predecessor of defendants, came upon that lot and there had a conversation with the plaintiff with respect to the ditch, but without result. There was some talk to the effect that instead of the open ditch it might become necessary to conduct the water across the lot by means of a pipe which should be covered. We agree with the trial court that the conversation, as related by Peterson, is of doubtful meaning. At any rate, plaintiff continued the use of the ditch without interference, and Peterson paid no further attention to the matter. No one ever questioned plaintiff's right to take the water through there.

Mrs Youngquist bought lot 13 in 1915, and beginning with 1916 she and her husband used the ditch to irrigate their lot, and they have continued to do so; the plaintiff did not object to their use, and they have used water from the ditch whenever needed by them.

The evidence indicates that the plaintiff and defendants, at all times until the summer of 1925, were upon neighborly terms. Occasionally they talked of placing pipe in the ditch and covering it. As Mr. Youngquist said: "We agreed off and on that the ditch should be piped and covered up." At one time or another each offered to buy half the pipe, but in the language of the plaintiff they "talked quite a lot about it but never came to a full agreement." In his talks with the defendants plaintiff's right to maintain the ditch was not questioned; the question was "the convenience or advisability of piping through that bench." There was talk about the proposal to pipe, but none about the right to carry the water through the ditch. The plaintiff testified that he himself made the first proposition to pay half the cost of piping, the defendants to use water through the ditch instead of putting in their own lateral. The plaintiff never by word of mouth asserted his claim to an easement for the ditch across defendants' land. He cleaned the ditch each year, but never received permission to do so- "Q. During that time did you claim the right to do so? A. Why, I claimed it, yes, by going forward as if I-

Q. (By the Court) Well, now, in what way did you claim the right? Did you in your mind claim the right? A. Sure I did; sure I did; didn't have a doubt but what it was my legal right.

Q. You thought you had the right all the time? A. Yes, I did; that was the fact.

Q. You said you had the right? A. In my own mind, I answered. You asked me-

Q. You didn't communicate that to anybody, though? A. No, I didn't go and talk to anybody about it."

When defendants bought the place, they understood from Mr. Peterson that they could cover the ditch whenever they desired to do so. It was not Mrs. Youngquist's understanding that they had a right to close up the ditch at any time they wanted to, but she did understand that they could "pipe it and cover it up."

In their answer the defendants pleaded that plaintiff's use of the ditch had been through their license and permission. The court inquired particularly into this phase of the case. Asked to indicate some specific instance in which defendants indicated that plaintiff had their permission to maintain the ditch, Mrs. Youngquist said the only time the parties had a real conversation about it was when they were talking about piping the ditch; it was always agreed that they would pipe it some day and as long as it was not piped they could use it as it was.

"Well, we never really said, 'Now I will just simply give you permission to go through there,' only we never interfered. They had gone and turned the water in, and we had let them run it through. There was never anything really mentioned about it. They never asked us for permission, and we simply never interfered with them, just let them take it."

Upon cross-examination Mrs. Youngquist answered questions as follows:

"Q. Now, in these conversations with Mr. Stetson, did he ever offer to buy the right of way that was there? A. He never did.

Q. Did you ever say that he would have to buy a right of way through there? A. No, sir.

Q. By what right was he there? A. By his own right.

Q. Just his own right-he was asserting his own right? A. He was."

From the time they purchased the land they were told by different people "that the ditch had no right there." They did not take advantage of this gratuitous information until the summer of 1925, when they determined to bring the matter to a head. They then interfered with plaintiff's use of the ditch and this suit resulted. Seemingly the break between them came when plaintiff told Mr. Youngquist if the ditch were to be covered he wanted it covered for the whole length and desired it wholly for himself; the reason given was that plaintiff "did not want the children throwing stuff into it," as had been done near a culvert, causing the ditch to overflow; and plaintiff said "sometimes the water would be taken to irrigate the strawberries, and instead of turning it back they would turn it out at the headgate."

During the trial the question arose whether plaintiff had paid taxes upon the ditch or right of way for the ditch. It was shown that plaintiff's land has been assessed as irrigated land at a value of $185 per acre, while adjoining land of the same character, not irrigated, was assessed at $100 per acre. Plaintiff's only means of irrigation was through the ditch in question. The plaintiff's position is that the ditch is appurtenant to the land. The court inquired of plaintiff whether during the fourteen years that he had gotten water through the ditch across the Youngquist land he had considered he was paying taxes on the right of way, to which plaintiff answered in the negative, saying that the taxes were for irrigated land, and he had not considered "paying any definite tax on a right of way"; he was never conscious that he had paid taxes on the right of way, and never was assessed for a right of way.

The assessor testified that it had not been the practice of his office to assess a right of way; he did not assess any ditches, but assessed irrigated land at a greater value than unirrigated land. The court said: "Well, I don't think that is proof he assessed this right of way."

The court found for the defendants, and the plaintiff appealed.

"Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription which is sufficient against all" (section 6818, R. C. 1921; Rude v. Marshall, 54 Mont. 27, 166 P. 298; Hays v. Deatley, 65 Mont. 558, 212 P. 296), and the title to an easement acquired by prescription is as effective as though evidenced by a deed ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT