Tucker v. Missoula Light & Water Co.
| Decision Date | 04 October 1926 |
| Docket Number | 5962. |
| Citation | 250 P. 11,77 Mont. 91 |
| Parties | TUCKER v. MISSOULA LIGHT & WATER CO. et al. |
| Court | Montana Supreme Court |
Rehearing Denied Oct. 20, 1926.
Appeal from District Court, Missoula County; Theodore Lentz, Judge.
Action by L. E. Tucker against the Missoula Light & Water Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.
Fred J Furman, of Butte, and W. M. Bickford, of Missoula, for appellants.
S. P Wilson, of Deer Lodge, and Mulroney & Mulroney, of Missoula for respondent.
Appeal from a judgment on verdict in the sum of $22,726.90 damages for the wrongful and unlawful diversion and use of water during the irrigating seasons of 1922, 1923, and 1924.
The complaint contains three causes of action, one for each of the years mentioned, which are practically identical, except as to the dates and the damages alleged to have been suffered. Each cause of action alleged that at the times mentioned plaintiff was in the lawful possession of 1,356 acres of land in sections 2, 11, 12, 13, and 14, in township 13 north of range 19 west in Missoula county, of which 175 acres were arid agricultural lands requiring water for irrigation, but which, with proper irrigation, would produce abundant crops of hay, grain, and corn; that in each of said years approximately 150 acres of this land was seeded to grain as a nurse crop, and with such seed was also sown alfalfa seed, and approximately 18 acres thereof were planted to corn; that appurtenant to said land, and for the irrigation of said crops, plaintiff was entitled to the use of 377 miner's inches of the waters of Rattlesnake creek, which stream passed through said lands, and that at all times mentioned in the complaint the flow of said creek was sufficient to supply the rights of plaintiff after those of all prior appropriators were satisfied. Each of said causes of action then alleged that on the 1st day of July of the year mentioned all of said crops were in good condition, and had had sufficient irrigation, but then required further water, with which the land would have produced bountiful crops. It is then alleged in each of said causes that, on or about the 1st day of July of the year mentioned, the defendant closed plaintiff's ditches, and wrongfully and unlawfully diverted all of the water to its own use, and refused to permit plaintiff to take or to use any of the waters of said creek, though he repeatedly requested and demanded the same, and that by reason of such wrongful and unlawful acts of the defendant all of such crops, in each of said years, were destroyed, to plaintiff's damages in sums aggregating approximately $47,000.
By answer the defendant denied all of the above allegations, and set up an affirmative defense to each of the causes of action contained in the complaint. Each of these separate defenses pleaded a judgment and decree of the district court of the Fourth judicial district rendered in 1903, fixing and determining the water rights and priorities thereof in and to the water of Rattlesnake creek, and alleged that said decree had become final and was binding upon plaintiff, and that, under said decree, defendant was entitled to the prior use of 2,676 miner's inches of said waters.
The affirmative defenses to the first and third causes of action are, with the exception of dates, identical. Each alleged that in the year mentioned a water commissioner was duly appointed, qualified and acting, and that under his distribution the defendant received no more water than it was entitled to under the decree; that the commissioner reported to the court, and his report was duly approved and became binding upon plaintiff. The period of this service in 1922 was given as from July 26th to August 25th, and in 1924 as from August 9th to October 4th.
As to the second cause of action, paragraph 4 of the affirmative defense alleged that defendant was the owner of, and operated, a water system which furnished water to the people of the city of Missoula and vicinity for domestic, irrigation, and other purposes, and that "such water so furnished and sold is and was necessary for all of the above purposes during all of the time or times herein mentioned."
Paragraph 6 of said defense then alleged that the plaintiff did not, at any time during the season of 1923, notify defendant that he required water for irrigation; that no water commissioner was appointed for said stream; that plaintiff did not seek to secure such appointment, and that, by his failure "to avail himself of the rights and authority conferred upon him by law, * * *" plaintiff was precluded from complaining of his failure to obtain water in that year.
By his reply the plaintiff admitted the entry of the final decree pleaded and the appointment and service of a water commissioner in 1922 and 1924, as alleged; denied specifically the allegation that in those years the defendant received no more water than it was entitled to under the decree; affirmatively alleged that he was greatly in need of water prior to the distribution by the water commissioner; and denied generally all allegations contained in the answer not admitted in the reply. As to the affirmative defense to the second cause of action, the reply admitted that the defendant operated the water system which supplied water to the people of Missoula, and denied all other allegations of paragraph 4 thereof, and specifically denied the allegations of paragraph 6 set out above.
On the trial of the issues, the defendant introduced no evidence, and all of the testimony on behalf of the plaintiff stands uncontradicted, except as discrepancies may appear therein. At appropriate stages of the trial the defendant objected to the introduction of certain testimony; moved that certain evidence be withdrawn from the consideration of the jury; moved for judgment of nonsuit and for a directed verdict; and, after judgment, moved for a new trial. In each instance the court ruled against defendant's contention.
Defendant's brief contains fourteen specifications of error. Counsel, however, have contended themselves with a general argument, under three heads, in which they discuss certain questions raised by the objections interposed and the motions made and on the adverse rulings on which certain of these specifications are predicated, while other specifications are not argued, and, apparently, have been abandoned. The questions thus presented will be disposed of in logical order.
1. Specifications 1, 2, and 3 predicate error upon the overruling of defendant's objection to the introduction of testimony on the ground that, as plaintiff did not avail himself of his statutory right to apply for the appointment of a water commissioner, he is in no position to complain that he did not get the water to which he was entitled under the decree fixing the priorities on the creek.
Chapter 27 of the Civil Code of Montana, as it existed prior to its amendment in 1925 (Session Laws 1925, c. 125, p. 215) governed the appointment of a water commissioner for adjudicated streams at all times mentioned in the pleadings. Section 7136, found in this chapter, provides for the appointment of such commissioner upon the application of the owners of at least 10 per cent. of the water rights affected by the decree.
The admissions in the pleadings establish the fact that the rights on Rattlesnake creek had been decreed, but the record discloses that the decreed rights total in excess of 4,000 inches of water, and that the plaintiff was not the owner of 10 per cent. thereof. It is therefore apparent that the plaintiff, acting alone, could not have secured the appointment of a water commissioner, nor is it shown that he could have secured the co-operation of any other water user or users entitled to join in an application.
In their brief, counsel assert that "it is alleged and not denied, that it was the duty of the plaintiff to apply to the court * * * for a water commissioner in the year 1923," etc., and that, by failure to avail himself of his rights in this respect, he was thereafter precluded from complaining of any deprivation. The only allegation with reference to plaintiff's failure to act in 1923 is found in paragraph 6 of the affirmative defense to his second cause of action, quoted in part above. That paragraph was denied in toto, and there is therefore no admission of such duty resting upon plaintiff. However, the allegation of such duty raised a question of law rather than fact.
Counsel for defendant assert that the water code of Montana is "so complete a remedy for all water uses and for all wrongful uses of water on an adjudicated stream that it seems self-evident that the Legislative Assembly * * * intended and designed this code as an exclusive remedy." We do not so view the statutes to which reference is made.
A special statutory remedy is not exclusive, unless such intention is clearly manifest. It is merely cumulative, unless a contrary intention clearly appears, and it cannot be otherwise than cumulative, unless it is entirely adequate for the protection of preexisting rights. Jaffe v. Fidelity Co., 7 Ala. App. 206, 60 So. 966; 1 C.J. 988; 1 R. C. L. 323.
The right to sue for damages for the invasion of a right existed under the common law, and exists under our Code (sections 8659 and 7097, Rev. Codes 1921), and the statutory remedy referred to by counsel must, if it is to supersede such right of action, be entirely adequate to protect the rights of owners of decreed rights at all times. A careful reading of the chapter discloses that it does not require the appointment of a water commissioner on all adjudicated streams and for all seasons. It is only on application of at least 10 per cent. of the owners under the...
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