Barkley v. Tieleke

Servts, J. The plaintiff appeals to this court from the judgment of the court below, refusing a perpetual injunction. The plaintiff and defendants both owned valuable mining ground, below Indian creek, in Jefferson county, Montana Territory, and owned ditches conveying the waters therefrom to said mining ground. The plaintiff’s ditches were known as the “ Freeman ditch ” and the “ Cedar gulch ditch.” The defendants’ was known as the “ Tieleke ditch.” Both claimed prior right to the waters of said creek. The findings of the court below sufficiently state the facts, which findings are as follows: “First. The Freeman ditch was constructedin 1866, and diverted and appropriated 100 inches of the waters of Indian creek in that year. Second. The Cedar gulch ditch was constructed in the year'1867, and diverted and appropriated 150 inches of water from said Indian creek in that year. ' Third. That the Tieleke ditch was constructed by defendants in the year 1868, as original appropriators, and diverted and appropriated 500 inches of water from said Indian creek in that year. Fourth. That both of said first-mentioned ditches were constructed by various persons other than the plaintiff or his immediate grantors, prior to the construction of the said Tieleke ditch, whereby the defendants sought to and did take the waters from said Indian creek against the will of the plaintiff after his purchase of the first-named ditches. Fifth. That the plaintiff and defendants respectively own valu [63] able mines of gold, upon which they desire to use said water; and the said mines and ditches are comparatively worthless without the use of said water. “ Sixth. That the water of said Indian creek, during a good portion of the mining season, does not exceed 150 inches, and during some portions of the mining season does not exceed 250 inches of water; and that the respective claims of the parties are hostile, and, for a great portion of the mining season, one must give way to the other. “ Seventh. That the various persons constructing the Cedar gulch ditch and the Freeman ditch, by certain unsealed and unacknowledged paper writings, purported to convey their respective interests therein to certain persons other than the plaintiff’s grantors, but who, thereafter, and in like manner, by like paper writings, transferred the same to plaintiffs grantors, who took possession thereunder (and not by appropriation) prior to the appropriation and construction of the Tieleke ditch, who thereafter conveyed the same to plaintiff. “ Eighth. That one Freeman (to whom a part of the same had been so conveyed), in the year 1870, by deed duly executed, acknowledged and delivered, conveyed all his interest in said ditches to the plaintiff; and that "Wilcox and Doughty (to whom the balance had been so conveyed), on the 6th day of September, 1870, by deed, conveyed all their interest in said ditches and water to said plaintiff, which deeds were, in all respects, in due form of law, except the acknowledgment thereof by Wilcox, which was done before a deputy county clerk of Montana Territory. “ Ninth. That the words “ dump ground,” as appears in the deed from said Wilcox and Doughty, were, by the consent of one of the grantors thereof, inserted therein after the delivery and recording of the same. “ Tenth. That the respective parties, up to the year 1870, mutually divided the waters of said Indian creek, and for the latter part of the year 1870, defendants, by compromise with Wilcox and Doughty, used all the waters of said Cedar gulch ditch.” The plaintiff insists that, under the facts, as found by the court, there is shown to exist at least such an equitable title to the property in question as to entitle him to the relief demanded. [64] Tbe defendants insist, that before relief can be bad under tbe claim made by plaintiff, he must resort to an action at law to settle tbe legal title to tbe property in question. That, by' tbe law of this Territory, such property is declared to be real estate, requiring, for a conveyance thereof, tbe same form and solemnity as of real estate in fee simple; that no such conveyance is shown to have been made to tbe plaintiff’s grantors; and that, therefore, their appropriation of tbe waters of Indian creek is superior to plaintiff’s. Upon a review of tbe authorities, we are satisfied that chancery is a well-defined remedy for relief in an action in tbe nature of a nuisance, of which this clearly partakes, without resort to an action at law. In fact, equity seems to be the only appropriate remedy to afford relief in cases like the one under consideration. As to the character of the property or right in dispute, it is true, under our law, it is such a species of realty as to require for its transfer the same form and solemnity as the conveyance of any other real estate. Cod. Sts. 396, § 3; 402, § 34. Yet we can readily see how am, estate or an interest in such kind of property can be acquired without such formality of conveyance. Under the law of congress, a grant of the kind of property in question is presumed by the act of appropriation. This may be lost by surrender or abandonment. The conveyance or transfers of the property to plaintiff’s grantors alone was not sufficient under our statute to convey the property to them; but the attempt so to do by imperfect conveyances, if it did not operate as an absolute or equitable conveyance, clearly operated as a surrender or an abandonment of their right, title and interest acquired by appropriation, which was the digging of the ditches in question. The title to these ditches is not controverted by the defendants, but only the waters of Indian creek carried through them. The water is but an incident to the ditches, and the right acquired to use it may be lost by abandonment, and when so .lost, it becomes ('jptihlici juris) public property again, and subject to be recaptured, and when so recaptured, the original appropriators are estopped from reasserting their claim to it; and if they are estopped, wherein can a stranger assert or claim any right to such property ? [65] The defendants in no manner connect themselves with the plaintiff’s title, unless it be their claim of prior appropriation, which is simply possession, the priority of which necessarily determines the question under consideration. The pleadings and findings of the court establish the fact that plaintiff’s grantors had obtained actual and rightful possession of the property in question, prior to the construction of the Tieleke ditch by defendants, and that they continuously retained such possession until they conveyed the same to plaintiff, who, in like manner, continued the possession thereof until interfered with by the defendants. If the conveyances to plaintiff’s grantors did not in fact transfer such an interest as entitled them to all the rights of their grantors, then the right was abandoned, and the possession thereof taken by plaintiff’s grantors was as much an original appropriation of the waters of Indian creek as if they had originally constructed the first ditches to divert the same. Such possession, even if it did not determine the ownership under the act of congress of March, 1866, does nevertheless vest in the plaintiff such an equitable interest as to entitle him to maintain this action. From all the facts and circumstances, we cannot refrain from expressing our conviction, that the defendants, when they located and constructed their ditch, did it with reference to, and with full knowledge of, the prior rights of the Freeman and Cedar gulch ditches. We are, therefore, of the opinion that the court below erred in refusing to decree a perpetual injunction against the defendants. The judgment of the court below is therefore reversed, with costs to be taxed against defendants. The findings of the court below being, that the Freeman ditch conveyed 100 inches of the waters of said Indian creek, and that the said Cedar gulch ditch conveyed 150 inches of the waters of said creek, the injunction should therefore be so far made perpetual in favor of said plaintiff and against said defendants, and judgment is hereby rendered accordingly. Judgment reversed.