Campbell v. Flannery

79 P. 702, 32 Mont. 119, 1905 Mont. LEXIS 152

• Court: Montana Supreme Court
• Decided: February 23, 1905
• Docket: No. 2,026
• Status: Published

Opinions

MR. JUSTICE MILBURN

delivered the opinion of the court.

This is a suit for an injunction to prevent the defendants from cutting the levees of, or damming up, or in any other manner interfering with a certain ditch, for thus, it is alleged, certain waters are prevented from flowing therein, thereby causing the overflowing and flooding of plaintiff’s land; and, further, that there may issue a mandatory injunction commanding the defendants to remove certain obstructions from the-ditch, else to cut a gate in the same, in order to allow the free and unobstructed flow of the water into another ditch. In other words, the plaintiff desires to have the defendants restrained from turning certain flood waters out upon his land..

It is alleged in the complaint, and appears to be the fact, that the plaintiff, since the fall of 1897, has been the owner of and in possession of a tract of two hundred acres of land; that the defendants at the time of the filing of the complaint, and at certain times thereinbefore mentioned, have been in the possession of a certain tract of about one hundred and sixty acres of land, adjoining plaintiff’s land; that from a certain point in the East Gallatin river south of the lands, a ditch called the “Flannery Ditch” runs in a northerly direction to the bed of Cottonwood creek, thence in the creek-bed, thence westerly. The bed of the creek is used as a ditch to a point close to the southeast corner of the tract, which embraces all the lands mentioned. The creek-bed' from that point runs in a diagonal ■course, leaving the said tract of land near the northwest corner thereof, almost all of the creek-bed in the said tract being upon the lands of the plaintiff. The said ditch, after leaving the Cottonwood creek, turns to the left, and joins a ditch called the “Penwell Ditch” at a point on the lands occupied by the defendants , the Penwell ditch then running on the latter’s land in a northerly direction. The plaintiff alleges that the defendants ■cut the levee of the said Flannery ditch, and turned the waters out of the same so that they ran down to the old creek-bed, where they had not flowed “since the early eighties”; that the plaintiff rebuilt the said levee, and that then the defendants put a dam across the ditch where it is taken out of the creek-bed, and turned the whole volume of water back into the creek-bed where it would flow across the plaintiff’s premises, to his great injury; that the plaintiff immediately tore the dam out, and allowed the water to continue in its course down the ditch; and that the defendants threaten to put the dam in again. The defendants admit that they did as alleged, and say that they intend to do it again. Hence this suit.

The defendant William Flannery years ago owned the land now belonging to the plaintiff, but by several transfers it became the property in fee of the plaintiff. It appears that the creek is dry a greater portion of the year, and only carries water in the spring and the early summer; and that the artificial ditch running from the creek was constructed long before the plaintiff purchased the land, which he bought in 1897.

It becomes necessary to consider that the plaintiff alleges in his complaint that prior to his purchase of his (plaintiff’s) land the defendant William Flannery went with him, and showed him the lands bought by plaintiff, and “proposed to sell the same to him, and also to sell a tract of land upon which he now lives, and through which the said Cottonwood creek also passed, and represented to plaintiff that the channel had been changed to the Flannery and Penwell ditches, and the same was used to carry off the surplus water of Cottonwood creek, and plaintiff was induced to purchase said lands by such representations; and at the time the defendant so showed the plaintiff these lands and this channel the same had been plowed and cultivated and were not used, and had not been used, as plaintiff is informed and believes, for a number of years, as the channel of said Cottonwood creek; and the purchase of said lands by plaintiff was made with reference to its condition at that time as pointed out by said William Flannery; said William Flannery at said time professed [italics ours] to be authorized to sell the same; that the channel of said creek on plaintiff’s lands had been practically reclaimed and cultivated, and improvements had been made upon it, before plaintiff’s purchase of the land, by the defendant William Flannery, and the improvements which plaintiff had put upon the creek-bed since he became the owner were made with the knowledge and acquiescence of the defendants; and that he was led to purchase the lands by the conduct aforesaid of William Flannery.”

It is alleged and admitted that the plaintiff is the owner of an undivided interest in, and is a tenant in common of, the Flannery ditch from the point of its connection with the East Gallatin river to its terminus in the Penwell ditch, with one Pat Toohey, Benjamin Graham and Joseph Davis, except that the defendants deny that the plaintiff has any interest in the ditch beyond the point where the same departs on the west from plaintiff’s land. Defendants admit that plaintiff has a right to the use of the water which he has appropriated from the East Gallatin river upon his premises, bringing it through said ditch. The land occupied by the defendants upon which the ditch runs after leaving the bed of the Cottonwood creek does not belong to the defendants, or either of them, and is merely in their possession under a lease and contract to buy.

The cause was tried before the court without a jury, it having been expressly waived by the parties. After the evidence for the plaintiff was all in, the defendants interposed what was called “a motion for nonsuit,” which was granted. The error assigned is that the court erred in sustaining this motion and in entering judgment for the defendants.

After a short statement of the case, the appellant in his brief submits what is denominated “Argument,” it being, in our opinion, a statement of facts merely, being a consideration of the evidence tending to show that certain conclusions of the appellant as to what the findings of fact should have been are well founded. Next comes the “Legal Argument,” (1) the first legal proposition being that the respondents, as tenants in common with the appellant, may not commit waste on the ditch in which they are such tenants in common, and that an injunction will lie to prevent it, both upon the ground of preventing repeated trespasses on the part of respondents and on the ground of insolvency. (2) The next point is that respondents are es-topped to deny the appellant’s right to transmit these flood waters through the Flannery ditch and the Penwell ditch to the East Gallatin river. (3) Then follows an argument seemingly in support of the proposition that William Flannery is the equitable owner of the lands over which runs the ditch after leaving the Campbell lands, the land having been patented by the United States to his mother, Catherine Flannery; the idea of counsel being that she was his representative in getting title from tho United States, he having abandoned his attempt to take it up under the timber culture Act, and she taking it as a homestead. From certain other facts in the case counsel em deavors to establish his contention that Mr. Flannery is, and always has been, the owner of the Toohey land. This point we need not give any attention to in the consideration of a suit of this character. (4) The further point is made that at the time that defendant Flannery owned the plaintiff’s land, and long before the acquisition thereof by the latter person, he (Flannery) owned an easement on the lands now in his possession, to wit, Toohey’s lands, and that that easement is a servitude on the Toohey land, and runs to Campbell by mesne conveyances. Counsel further assumes that at the time of the passage of the Act of Congress of July 26, 1866 (14 Stat. 251, c. 262), granting the right to settlers to run and maintain ditches upon public lands, the lands now occupied by respondents were •still public lands, and had become burdened by the running of the ditch over them, and that therefore those who obtained title thereto and their grantees held the land subject to such burden •or servitude, the Penwell ditch having been constructed in 1864, at which time there was not any settler upon the lands so now in possession of the respondents.

There is some testimony in the case, and there are certain -.allegations in the complaint, which seem to have been introduced and set up for the purpose of establishing an easement upon the lands occupied by the respondents by prescription, but ■counsel states that he does not rely upon prescription.

The plaintiff claims that he has an easement on what is called the Toohey lands, the burden upon the land being his right to have the flood waters of Cottonwood creek carried through the Elannery and Penwell ditches, rather than have them go over his land. An easement is obtained either by prescription or grant. In this case appellant expressly declares in his brief that he does not rely upon prescription. It seems that the grant upon which he relies is an implied grant in the Act of Congress of July, 1866, giving citizens the privilege of running •a ditch over unoccupied government lands. The Penwell ditch was first located in 1864. The part of the Elannery ditch running from the creek to the Penwell ditch for the purpose of •carrying off the flood waters seems to have been made and connected with the latter ditch in 1890. If the burden of carrying these flood waters came to be at any time a servitude upon the Toohey lands, it certainly could have been not earlier than 1890; but Catherine Elannery, the mother of the defendant William, had the possession of these Toohey lands transferred to her by William in 1885, at which time she undertook to initiate a homestead right under which she received a patent in 1891. The government could not grant to Campbell, the plaintiff, an easement upon the lands entered by Catherine Elannery and withdrawn from the public domain. This is enough to say to dispose of the idea of a grant from the United States to Campbell of any easement upon the Toohey lands. If the Penwell ditch and its uses were a burden upon the land by grant of the United States at the time Mrs. Flannery entered the same, such burden could not be added to as against her in favor of Campbell or anybody else by the United States under the Act referred to, after the lands were withdrawn, by her entry.

It appears from the evidence that one Toohey owns the Too-hey lands, in possession of defendants, upon which plaintiff claims an easement; that is, the right to have the flood waters run over the said lands in the Flannery ditch. As to find for the plaintiff it would be necessary for the court to conclude that there was such a burden upon the said lands, it is apparent that such an easement may not be adjudged in a suit to which Toohey is not a party.

The main point in this case to be considered, and the one upon which respondent seems principally to rely, is the question whether or. not the defendants are estopped by the conduct of the defendant William Flannery in going with the plaintiff upon the land just before the purchase in 1897, and showing him the same, and telling him that the flood waters formerly going down the creek no longer ran over the land, but were carried around through the ditches. We cannot understand how the defendants or either of them is estopped. There is nothing in the complaint in any wise connecting Ida B. Flannery, one of the defendants, with the acts or statements of William. There is not any allegation in the pleading that William was the agent of the owner of the land, or authorized to represent him, or to make any representations for him. The statement simply is that he professed to be authorized to sell the land. There is not even a statement that he did sell it, or had anything to do with selling it. The evidence in fact shows that the plaintiff got the land from somebody else, who acted as agent. We cannot understand how, if a stranger to the owner of the land makes false representations to a person who buys the land in a subsequent transaction with a party not connected with the one making such representations, the person so making false statements at one time can be estopped in another matter, such as the case at bar, at another time, any more than if a stranger to the selling of a' horse, having no interest in the transaction, should, without the knowledge of the owner, falsely represent the qualities thereof to the would-be purchaser, who bought the animal on the strength of those representations, such owner of the horse could be held liable, and estopped to deny the statements of the officious person, in case the animal turned out to be worthless.

Furthermore, the evidence of the plaintiff shows that at th& time Flannery made these representations, if he did make them, the creek-bed on the land bought by the plaintiff had been cultivated, had stubble upon it, had willows growing upon it, and the dam which prevented the waters running down upon the land had a clump of large willows upon it eight or ten feet high ; all of these circumstances showing conclusively, according to plaintiff’s testimony, that the water had not gone down the creek-bed for a great while, and that the creek-bed had not been a watercourse over the land which he bought for a long time.

The motion of respondents is not strictly a motion for non-suit, but a motion for judgment for the defendants. The alleged equities of the plaintiff’s case having been presented in the evidence and under his complaint, and no evidence having been introduced by the defendants, it was the duty of the court to determine whether or not plaintiff had established his case, or had any equities. The court found that under the evidence he had not, and under the law as laid down in Sanford v. Gates, 21 Mont. 277, 53 Pac. 749 (see, also, cases cited in Am. &Eng. Ency. of Law, 2d ed., pp. 801-803), this case is res judicata, if the holding of the court was correct, as we think it was.

We do not find that the court erred in its ruling on the motion of defendants complained of, and the judgment is therefore affirmed.

Affirmed.

Mr.. Ohiee Justice Brantly concurs. Mr.. Justice Holloway, being disqualified, did not hear the argument, and takes no part in the foregoing decision. (Submitted March 21, 1905. Decided March 31, 1905.)