Smith v. Hope Mining Co.

De Witt, J. On appeal, the plaintiffs contend that the court erred in its findings of fact in two respects. First, that the evidence did not sustain the finding that the defendant had been in the actual, continued and adverse possession and use of all the waters of Frost creek as set forth in finding No. 1, from 1883 to 1893; second, that the evidence did not sustain the finding that the plaintiffs abandoned the right which they [437] bad in the use of the waters of Frost creek in 1883. We will examine these two contentions. (1) We are clearly of opinion that the evidence does not in any degiee sustain the finding of adverse possession by the defendant. The rights of the respective parties, as far as this action is concerned, date from the compromise contract of November 28, 1881. At that time there was a controversy between the two mining companies as to the use of the waters of Frost creek. That controversy, and the lawsuit growing-out of it, were settled by the contract described. It was thereby agreed that the Hope company instead of taking its water, as theretofore, at a point below the head of the Algonquin ditch, should take it through the Algonquin ditch and flumes. It was settled between the two mining companies that the Hope company had the prior right to the use of fifteen inches; and it was also conceded that they should have the use, as far as the Algonquin company was concerned, of a further amount of water which was over and above the water necessary for the Algonquin mill. Thereupon the companies used the water through the common vehicle — the Algonquin ditch. They divided the expenses of taking out and delivering the water through this ditch and the flumes and boxes connected therewith. When the Algonquin mill closed down in 1883, it appears by the evidence that the Hope company continued to take the water through this same common vehicle. They had a right to take fifteen inches, and they had a further right to take all over fifteen inches which the Algonquin company were not using. In fact the Algonquin company were using no water from 1883 to 1893; therefore, the Hope company, by reason of the contract, had, as against the Algonquin company, the right to all the waters of the creek which was conveyed into the ditch. These waters they took as they had a right to take them under the terms of the contract. We cannot understand how it was held that the Hope company were acting adversely to the Algonquin company when they were simply doing exactly what the Algonquin company had contracted that they might do. There is no evidence what [438] ever that the Hope company ever purported to act otherwise than under the contract. They never notified the Algonquin people, either by word or deed, until the controversy arose in 1893, out of which this present lawsuit originated, that they claimed the use of these waters adversely to the Algonquin company. In our opinion, the evidence shows beyond any question that the Hope- people were using the waters under the contract, and not adversely to the Algonquin. We are therefore of opinion that the finding of the adverse use and possession by the defendant is not sustained by the evidence. 2. We are also of opinion that the evidence does not sustain the finding that the plaintiffs had abandoned their right to the use of the waters which they owned, as against the defendant, in 1883. It is true that the evidence shows without controversy that the Algonquin Company did not use the waters, in their mill or otherwise, for a period of about nine years following 1883. But mere nonuser of a water right is notan abandonment. (Atchison v. Peterson, 1 Mont. 561; McCauley v. McKeig, 8 Mont. 389; Tucker v. Jones, 8 Mont. 225, Middle Creek Ditch Co. v. Henry, 15 Mont. 558; Gassert v. Noyes, ante, page 216.) The nonuser of water for so long a period, and especially a period longer than the statute of limitations, is certainly very potent evidence, if it stood alone, of an intention to abandon. Abandonment is a question of intention. (See cases last cited.) But whatever force the fact of nonuser for nine years may have had in showing an intention to abandon, that force was wholly offset and contradicted by the other evidence in the case, so as to leave, in our opinion, not even a conflict of testimony. It appears that, when the Algonquin mill was shut down in 1883, a man was employed to drain all the pipes and oil the machinery, for the reason that the company could not use the water when the mill was shut down. The water was a necessary appurtenance to the mill, — necessary, as appears by the testimony, as a matter of fact, and an' appurtenance as a matter of law in this jurisdiction. (Tucker v. Jones, 8 Mont. 225 ; Sweetland v. Olsen, 11 Mont. 29 ; Beatty v. Murray Placer Mining Co., 15 Mont. 314.) [439] During the period while the mill was shut down — that is for nine years — it was cared for by the owners. It was left in charge of persons resident in the territory and the state of Montana. Some one always had charge of the property, and it appears by the evidence that for a very large portion, if not all, of the time a custodian or watchman was upon the premises, caring for them. It cannot be contended for a moment that there was a scintilla of evidence tending to prove that the Algonquin Company intended to abandon the mill. Every act shows that they did not so intend. They did not use the water, simply because the machinery of the mill was not in motion. When it thus appears that the intention was clearly not to abandon the principal estate (that is, the mill), we cannot hold that the fact of temporary and necessary nonuser of the appurtenance (that is, the water) was any evidence whatever of an intent to abandon that appurtenance. The appurtenance was a necessity to the mill, and the intention to abandon that appurtenance must clearly appear. (See cases last cited.) We think the contrary clearly appears in this case. If we sustain the finding of the district court as to the abandonment, it would be holding, in practical affairs, to this effect, viz., that if, through the vicissitudes of mining, a company finds itself obliged to close its mill for a considerable period, — ra period as long as the statute of limitations, — then, in order to preserve the water right appurtenant to the mill, they will not be permitted to allow the water to remain idle, but must continue its use. To continue its use thej' must keep the machinery of the mill moving. These views lead into absurdities. They simply demonstrate that, if a milling or mining company is obliged to close its mill, and thus cease the use of its water right for a period equal to the statute pf limitations, it will by such an act be deemed to have abandoned the water right, which is an absolutely necessary appurtenance to the mill. We cannot subscribe to any such doctrine as this. As above noted, whatever force as evidence the fact of the nonuser of the water had was wholly destroyed by the conclusive evidence that the Algonquin Company did not abandon its mill. In the [440] face of the evidence of intention to retain the mill, the mere fact that it did not use the water when it could not use it is of no weight whatever. It does not even raise a conflict in testimony. These two findings which we have reviewed being set aside, as not sustained by the evidence, there is nothing left to sustain the judgment. It is therefore reversed, and the case remanded, with directions to grant a new trial. Reversed. Hunt, J., concurs. Pemberton, C. J., not sitting.