Crawford v. Minnesota & Montana Land & Improvement Co.

Harwood, J. — The trial court sustained the demurrer, evidently because it reached the conclusion that the complaint failed to state facts showing plaintiffs’ acquisition of an interest in said irrigating canal, or water therein conveyed, to the extent of twenty inches, as an appurtenance to plaintiffs’ eighty acres of land. In other words, the court, no doubt, concluded that the complaint failed to show that any such water right, as claimed by plaintiffs, was appurtenant to their said land when they acquired the same from defendant. Are the facts alleged, if admitted or established by proof, sufficient to warrant judgment declaring plaintiffs owners of an interest in said irrigating ditch or canal, and the waters therein carried, to the extent of twenty inches, accompanying such judgment with an injunction forbidding defendant from interfering with plain til's’ perpetual use of so much of the waters of said ditch ? According to the allegations of the complaint, defendant, being the owner of a large quantity of arid land situate in Yellowstone county, about the 1st of May, 1882, commenced the construction of a large irrigating ditch or canal, about forty miles in length, thereby to appropriate water from the Yellowstone river, to make its said land available for agricultural purposes. It is further alleged that, at the time plaintiff [157] A. M. Crawford bought eighty acres of said land from defendant, it was selling its land “by representing that right to needed water through said canal, for purposes hereinbefore stated [that is, for irrigation], inured therewith to purchasers of said land, and that such needed water, therefore was, assured by means of said canal”; that about the 18th of October of the same year, 1882, plaintiff A. M. Crawford, relying on said representation, entered into a contract to purchase said eighty acres of land from defendant. It is not alleged that the contract for sale and purchase contained any stipulation whereby defendant agreed to assign or grant to plaintiff any interest in said ditch, or the waters thereof. Nor is said contract exhibited as part of the complaint, or pleaded in effect. Nor does the deed executed pursuant to said contract contain a grant of any interest in said ditch, or water therein conveyed. The contract, according to the allegations of the complaint, was made, and plaintiff A. M. Crawford entered into the possession of said eighty acres of land, long prior to the time said irrigating ditch or canal was completed; hence, no water was used upon said land, through said irrigating ditch, by defendant of any other party, prior to the sale of said land to plaintiff. The allegations of the complaint are insufficient to show that said irrigating canal, or any interest therein, ever became or was an appurtenance to said eighty acres of land. So far as the allegations of the complaint show, when plaintiff purchased said land from defendant said irrigating canal “was in noway connected with the enjoyment or use of the lot; and a right not thus connected cannot be annexed as an incident to land, so as to become appurtenant to it.” (Linthicum v. Ray, 9 Wall. 241.) To adjudge plaintiffs the owners of an interest in defendant’s irrigating ditch, to the extent demanded, would, in effect, extend their acquisition to things beyond, and unconnected with, the property described in the conveyance, or the contract to convey; and that extension would be founded on parol evidence that certain representations were made by defendant as to its purpose of constructing such an irrigating canal to make water available to irrigate its lands — representations not even alleged to have been made to plaintiff when he purchased said [158] tract of eighty acres, nor incorporated in any of the papers executed in reference to plaintiffs’ purchase, but merely alleged to have been made by defendant during a period which covers the date of plaintiffs’ purchase. A judgment to that effect, founded on such a showing, would be entirely subversive of the principles of law governing contracts and conveyances relating to realty. The allegation that plaintiffs enjoyed the use of twenty inches of water from said ditch since the season of 1884 does not constitute a plea of adverse possession, when read in connection with other facts shown by the complaint, to wit, that defendant is and has been proprietor and has exercised control and dominion over said irrigating canal since its construction. If plaintiffs have enjoyed the use of twenty inches of water taken out of said ditch, as alleged, that enjoyment must have been by sufferance of defendant, who exercised dominion over the irrigating canal. If one fetches water to a place, and then, under such conditions, having control over the vessel wherein the water was conveyed, suffers another to partake thereof, can the latter claim that he is using adversely? Such is the situation shown by plaintiffs as to their use of said water, and a use under those circumstances is not adverse possession. If this were a case where plaintiffs, having shown their acquisition of said land, relying on representations of defendant that it would, by construction of an irrigating ditch, bring water into the vicinity of said laud, so as to be available for irrigation thereof, and that plaintiffs had complied with the lawful conditions and requirements imposed by said company on the use of said water, and, having so complied, or offered compliance, defendant refused or neglected to allow plaintiffs the use of water from said ditch, or diverted the same to other and later settlers, it would constitute an entirely different complaint, to which the foregoing opinion would not be applicable, for plaintiffs have presented no such case. In our judgment the trial court was correct in holding that the allegations of the complaint were insufficient to enable plaintiffs to bring within the boundaries of their acquisition [159] the valuable interests which they demand. The judgment will therefore be affirmed. Affirmed. PembertoN, C. J., and De Witt, J., concur.