Sloan v. Glancy

Hunt, J. We will not-encumber this opinion with a lengthy statement of the testimony in the case. A brief recital of the evidence upon which the district court andthe jury founded their conclusions is sufficient. From 1883 to 1886 Joel A. Harris owned a tract of land, afterwards sold to this defendant. In 1883 J. W. Howell built a small ditch across Harris’ land to irrigate his own garden. In 1884 Thomas Culnan, J. T. Clegg and E. McDonnell proposed to build another ditch acr oss Harris’ land above, but parallel to, the original Howell ditch. About the time that Culnan, Clegg and McDonnell commenced their proposed ditch, Harris went to them, and speaking particularly to Culnan, McDonnell and Howell, objected to their taking out another ditch. Harris told them there was another ditch below and they ought to unite on the one ditch and not cut his place up. Culnan explained to Harris that there had been some disagreement between Howell and.themselves concerning the rights in the other ditch, to which Harris replied that he was not going to have his ranch cut up by ditches because of a squabble among themselves. After some further conversation Harris told them that if they wished to construct a ditch through his land he wished what water he needed for the land below the ditch and that would be all the damages he would ask. Tüey agreed upon this. The appellants now contend that Harris’ statement had relation only to the ditch which Culnan, Clegg and McDonnell were commencing to dig; but the court and jury believed that the point of Harris’ objections was to digging two ditches through his land, and that when he referred to uniting upon one ditch he referred to an enlargement of the Howell ditch — the one from which hecould divert the water to his land. It certainly appears that the advice of Harris was acted upon, for the ditch constructed was the old Howell ditch, and it was through the same that water was conducted by the plaintiffs thereafter. In 1886, before and after defendant purchased of Harris, certain wit [75] nesses conversed with several of the men who had constructed the enlarged Culnan-Howell ditch, and who owned interests therein. These persons admitted that the purchaser of Harris’ land was entitled to irrigate his land lying below the ditch by water from the ditch, thus recognizing the agreement which had been made with Harris, the grantor of defendant Glancy. When it was suggested to several of the owners that the purchaser would like a title by deed in writing, they said that they had nothing to show themselves and could not therefore give any title other than the right to go on and use the water as the purchaser might desire as the water, under the agreement with Harris, went with the ranch to irrigate whatever land was below the ditch. The defendant Glancy testified that two of the persons interested in the ditch had offered him §75 to relinquish his right to the same, and that another of the plaintiffs had told him, when there was some difficulty about the water in 1887, that when they had put the ditch through Harris’ ground, they had agreed to give to Harris the necessary water to irrigate what land lay below the ditch as a consideration for the right of way through his premises. Without further recapitulating the testimony, we think the findings are fully sustained by the evidence and that it appears the ditch now in use, and concerning which this action arose, is the identical one which was constructed as the result of the agreement between Harris and the plaintiffs, and that frequently after its construction, at divers times and to different persons, plaintiffs recognized the right of Harris, and permitted Glancy to purchase the land of Harris fully knowing of the agreement that had been made between themselves and Harris. Appellants stand in one of two positions. If they enlarged the Howel ditch without Harris’ consent, upon their own showing they were trespassers without legal right to maintain their ditch at all. Hence they would have no standing in a court of equity seeking to enjoin the right of the use of any waters by the person who owned the lands over which they [76] had unlawfully constructed their ditch. (Emerson v. Eldorado Ditch Co., 18 Mont. 247.) On the other hand, if they built the ditch with Harris’ consent, such authority was clearly only obtained in consideration of the right of Harris to use enough water to irrigate those' portions of his land lying below the ditch; therefore Harris’ rights as well as plaintiffs’, should be protected. The construction and use of the Howel ditch by the appellants tend to sustain the existence of the agreement as contended for by respondent, and to prove that it was in pursuance of that agreement and in consideration thereof that the plaintiffs were enjoying their rights, without having first proceeded in eminent domain. The admissions of the plaintiffs also strengthen this deduction. The facts, like those in Flickinger v. Shaw, 87 Cal. 126, invest the whole transaction with the character of a purchase and sale. The plaintiffs bought and Harris sold a right of way for a valuable consideration, and because of the relations of the parties the case is at once distinguished from that of Fabian v. Collins, 3 Mont. 215, where the legal relations of the parties were likened to those existing between a landlord and tenant, and where the privilege to use water under a license was held to be one limited strictly to the original parties not to be sold and transferred by the original licensees. Harris’ right to the use of the water to irrigate his land being established, he had a right to convey the same to respondent Glancy, and the conveyance to Glancy of the land with its appurtenances also conveyed Harris’ interest in the ditch and water right, which was necessary to the cultivation, use and enjoyment of the land, just as fully as if Harris had described it in express terms in the deed itself. This is the established law of this state and is decisive of respondent’s rights. (Tucker v. Jones, 8 Mont. 225; Sweetland v. Olson, 11 Mont. 27.) It is argued that because the evidence fails to show an actual use of the water for two years by Harris before he sold to Glancy, his right of use or his interest in the ditch and water [77] right did not become an appurtenant. No abandonment was relied upon; nor was it pretended that Harris intended to relinquish his rights at any time after he became possessed of them. On the contrary, he sold his lands to Glancy for a valuable consideration, and that water was necessary to the successful cultivation of the lands is a conceded fact. Mere non-user of a water right is not an abandonment. The Montana decisions upon that point are collated in Smith v. Hope Mining Co., 18 Mont. 432. There is nothing in the facts of the case to remove it from within the general rule that the water was a necessary appurtenance of the principal estate, and that in conveying the latter, as a matter of law and fact, the former was conveyed. Appellants object to the omission of the court to make findings upon the amount of the respective appropriations in the years 1884 and 1890 of the waters of Big Spring Creek flowing through appellants’ ditch. This issue became an immaterial one to the main controversy, for no rights of priority between appellants and respondent were involved. The evidence was so meagre upon the extent of the exact appropriations that the court and jury evidently found difficulty in making a specific finding. However, the privilege was accorded plaintiffs- of introducing further testimony upon the point before the court adopted the findings of the jury, but the offer was declined. Under these circumstances plaintiffs cannot complain. None of the other errors assigned are well taken. Judgment and order affirmed. Affirmed. Pemberton, C. J., concurs. De Witt, J., not sitting.