Tucker v. Jones

• Decision Date: 15 September 1888
• Citation: 8 Mont. 225
• Parties: TUCKER et al. v. JONES.
• Court: Montana Supreme Court

8 Mont. 225

TUCKER et al.

v.JONES.

Supreme Court of the Territory of Montana.

September 15, 1888.

Appeal from district court, Beaverhead county; before Chief Justice McCONNELL.

Action to determine certain ditch and water rights, brought by Enos P. Tucker and Mary Tucker against William Jones. Judgment for plaintiffs, and defendant appeals.

Robert B. Smith and Thos. L. Napton, for appellant.

Thos. J. Galbraith, for respondents.

LIDDELL, J.

This is a contest between the plaintiffs and defendant over the use of a certain irrigating ditch and water-right; and in the decision of the cause we are very much assisted by the opinion of the chief justice, who tried the case in the court below. We deduce the following facts from a confused mass of conflicting testimony found in the record: During the year 1866, David Jones and two other men, named Pirece and Durham, settled in the same neighborhood, on adjoining parcels of land, in what is now Beaverhead county, and appropriated the waters of Rattle Snake creek, by digging a ditch to convey the waters on their lands. David Jones, in 1877, sold his lands to one William Rowe, who in the year following transferred them to the present defendant, with all of its appurtenances; while the rights in the lands taken up by Pirece and Durham were sold and conveyed in 1868 and 1876 to Enos P. Tucker, who, in 1885, sold a part thereof to Mary Tucker, his co-plaintiff in the present suit. Pirece and Durham used the waters conveyed by the ditch, and ever since 1876 the present plaintiff, Enos Tucker, has used the water, as owner, for the purpose of irrigating his land, until July, 1887, when he was interfered with by the defendant, who claimed for the first time that he was the sole owner of the water-right and ditch, which was known in the neighborhood as the “Tucker” or “Tucker and Jones” ditch. Much conflicting evidence was introduced, as well as hearsay testimony; but, after a careful review, we agree with the judge of the lower court that the preponderance of the evidence is entirely in favor of the plaintiffs' right to a half interest in the ditch and water-right in dispute, for the reason that Pirece and Durham held their lands in undivision at the time of the appropriation and construction of the ditch, in 1866. Neither David Jones, Pirece, nor Durham was sworn in the case to show how or when the ditch was constructed and water appropriated, or the interests of the parties thereto; and we here remark that the various deeds offered in evidence shed no light upon the point, for none of them refer to the ditch or water-right, unless it be included in the term “appurtenances” to be found in all the acts. The defendant having claimed the entire ditch and water, the plaintiffs instituted the present suit to have their respective rights adjusted, and to enjoin the former from interfering with them in the use and enjoyment of the same. From a judgment in their favor, decreeing them to be entitled to a half interest in the ditch and water-rights, the defendant prosecutes this appeal.

In the decision of the cause we deem it entirely useless to recapitulate the conflicting testimony upon the questions of who constructed the ditch, the interest of the parties therein, and whether or not the plaintiffs used the waters of the ditch as owners, or by the sufferance and permission of the defendant, for the 11 years prior to the institution of this suit. It can serve no good purpose whatever to incumber this opinion with such detail. After finding that Enos Tucker has possessed and used an interest in the water and ditch as owner for 11 years, it seems hardly necessary to examine into the character of the possession of the land by Pirece and Durham, who sold to the plaintiff Tucker. But, quoting from the opinion of the chief justice in the case: “The statute provides that the appropriation must be for some useful and beneficial purpose, but when the appropriator ceases to use the water the right ceases; but questions of abandonment shall be questions of fact, and shall be determined as other questions of fact. Section 1251, Gen. Laws Mont. Now, if they had no land, or legal possession of the land, they had nothing for which they could appropriate the water. So, if Pirece and Durham did not have any possessory rights or interest in these public lands, they could not make any lawful appropriation, and an attempt to do so would be nugatory. It then becomes a vital question of fact to determine the character of their possession; and upon this point there is some conflicting evidence. It seems, however, that the ‘David Jones and Pirece Ranches' were both under the same inclosure, and without any division fences, with the ditch in dispute running clear through them. This, however, was before any surveys were made. The possession of Pirece and Durham was at least of an equal dignity with that of the defendant's grantors. They fenced, cleared, cultivated, and built upon the land, and had a clear right to make an appropriation of the waters of Rattle Snake creek for the purpose of cultivating these lands. By purchase, the plaintiff Enos Tucker acquired whatever possessory rights, with the improvements thereon, that Pirece and Durham had to the lands. We conclude that the point made by the defendant, that Pirece and Durham had no such interest in the land as would entitle them to make an appropriation of the waters of Rattle Snake creek, is not well...