Talbott v. Butte City Water Co.

• Decision Date: 26 October 1903
• Citation: 73 P. 1111,29 Mont. 17
• Parties: TALBOTT et al. v. BUTTE CITY WATER CO.
• Court: Montana Supreme Court

73 P. 1111

29 Mont. 17

TALBOTT et al. v. BUTTE CITY WATER CO.

Supreme Court of Montana

October 26, 1903

Appeal from District Court, Silver Bow County; John Lindsay, Judge.

Action by James A. Talbott and others against the Butte City Water Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

This action was brought by the plaintiffs (respondents) to secure a decree of the court settling the relative rights of the parties to the use of the waters of the Black Tail Deer creek, in Silver Bow county, Mont., to have the defendant restrained from diverting the waters of such creek from its natural channel, and for damages alleged to have been caused by the acts of the defendant in depriving the plaintiffs of the use of the waters to which it is claimed they were entitled. The plaintiffs Talbott and Thompson claim to be the prior appropriators of all the waters of Black Tail Deer creek, as against any claim of the defendant; and the plaintiff Boyce claims to be the prior appropriator of 150 inches of such waters, as against any claim of the defendant. The plaintiffs further allege in their complaint that, in 1886 the Basin Flume Company, the predecessor in interest of this defendant, leased the use of the waters of Black Tall Deer creek from this plaintiff Talbott and one Olin, the predecessor in interest of the plaintiff Thompson; that thereby the relationship of landlord and tenant was created and that the defendant herein is estopped from claiming any right adverse to the plaintiffs Talbott and Thompson until the expiration of five years from the termination of such tenancy. The defendant answered, denying the allegations of the complaint, and alleging that, if the plaintiffs ever had any right to the use of such waters, that right had been lost by abandonment prior to the commencement of this action, and pleading affirmatively, first, that it is the prior appropriator of all the waters of Black Tail Deer creek; and second, that prior to the commencement of this action it had acquired title to the use of all the waters of said creek by adverse user. The cause was tried to the court and jury, and numerous special interrogatories were submitted to the jury and by them answered. Upon the trial the court, among others gave, at the request of the plaintiffs, instructions numbers 7 and 8. which read as follows: "No. 7. The court instructs the jury that, when the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord, until the expiration of five years from the termination of the tenancy, or, where there has been no written lease, until the expiration of five years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord; but such presumption cannot be made after the periods herein limited. No. 8. The court instructs the jury that if they find from the evidence that the relation of landlord and tenant, as to the waters of Black Tail Deer creek, existed between Olin and Talbott, as owners, and the Basin Flume Company, as tenant, in the year 1886, as alleged in plaintiffs' complaint, then there can be no dissension or adverse possession by the said Basin Flume Company, or by any party succeeding to the possession of said company, until the expiration of five years from the termination of said tenancy, or, if there was no written lease, until the expiration of five years from the time of the last payment of rent, if rent for the use of the waters of Black Tall was paid"--and at the request of the defendant gave an instruction, numbered 6, which reads as follows: "No. 6. You are instructed, that where one who claims by reason of adverse possession entered as tenant, but afterwards returned the leased property, and thereafter re-enters and holds adversely for the period of five years, that said re-entry and adverse holding vest the title in the claimant, and that the period of adverse possession begins to run at the day of said re-entry, if the re-entry is hostile and adverse to the interest of the real owner." All the special interrogatories were answered in favor of plaintiffs, and the jury found that the plaintiffs had been damaged in the sum of $1,073. The defendant afterwards stipulated that the evidence is sufficient to sustain that finding, but particularly disclaimed liability for the damages. The court adopted the findings of the jury, and entered a decree in favor of the plaintiffs, adjudging the plaintiffs Thompson and Talbott entitled to the use of all the waters in Black Tail Deer creek appropriated in 1869, and the plaintiff Boyce entitled to the use of 150 inches thereof appropriated in 1879, and that each of these appropriations is prior and superior to any right of the defendant to the use of any of the waters of said creek. From this decree, and the order denying the defendant a new trial, these appeals are prosecuted.

Forbis & Evans and J. B. Roote, for appellant.

McBride & McBride, for respondents.

HOLLOWAY J. (after stating the facts).

Only two questions are discussed in the brief, and only those will be considered: (1) Did the trial court err in its instructions to the jury, and, if so, was the error prejudicial? (2) Did the defendant establish a right to the use of the waters of Black Tail Deer creek by adverse user?

1. It is contended that the court erred in its instructions with reference to the question of the relationship of landlord and tenant, alleged to have existed between the Basin Flume Company, predecessor in interest of the defendant Water Company, and Olin and Talbott, predecessors of Talbott and Thompson, two of the plaintiffs. Instruction No. 8, above given at the instance of the plaintiffs, and No. 6, above, given at the instance of the defendant, are absolutely contradictory. Section 37, first division, Compiled Statutes of 1887, is copied in instruction No. 7, above. The construction given this section by the court in instruction No. 8, above, is clearly erroneous. The section deals with the question of possession, while the instruction erroneously applies the doctrine to the relationship of landlord and tenant. Under that section, so long as the tenant is holding possession of property obtained from his...