Cocanougher v. Zeigler

112 P.2d 1058, 112 Mont. 76, 1941 Mont. LEXIS 38

• Court: Montana Supreme Court
• Decided: May 1, 1941
• Docket: No. 8,124.
• Status: Published

Opinions

MR. JUSTICE ERICKSON

delivered the opinion of the court.

This action is one in which the plaintiff seeks to eondemn a right-of-way through an irrigation diteh on defendant’s land for the purpose of conveying water for irrigation to land of the plaintiff adjoining that of the defendant. The diteh in question arises in a slough adjacent to the Big Hole River. The testimony is that it follows closely along the edge of the slough for some little distance and then passes through the defendant’s land, and that it is now used solely by the defendant. There is testimony that the ditch extends on to part of plain tiff’s land but that the ditch has been unused there for a number of years. Judgment in the lower court was for the defendant.

The allegations of the plaintiff’s complaint are that he has no other practical means by which to convey water to his land; that because of the terrain and the present location of defendant’s ditch the construction of a paralleling ditch would cost so much that, as he put it, it would be worth more than the land which he seeks to irrigate. The testimony indicates, by reason of the fact that the defendant irrigates directly from the ditch in question, that unless that ditch may be used jointly it would be necessary for the plaintiff to build a ditch on each side of the present ditch for defendant’s use and that to water his land he would have to use the present ditch. The testimony of the defendant’s own witnesses is that the construction of some other means of conveying water rather than by joint use of the present ditch after its enlargement to plaintiff’s land would be prohibitive in cost.

The court’s judgment is based on its findings that the enlargement and joint use of the ditch in question would result in destroying the defendant’s use of it and that it would result in appropriating and taking away the property now appropriated to a public use for another public use not more necessary than the first, under the provisions of subdivision 3 of section 9936, Revised Codes, which provides that private property appropriated to a public use may be taken by eminent domain “but such property must not be taken unless for a more necessary public use than that to which it has already been appropriated. ’ ’

Aside from these two matters, the proof is ample to support plaintiff’s complaint and there seems no question that except for these two objections plaintiff should have been granted the relief sought.

Is there substantial evidence in the record to support the finding that the enlargement of the ditch “will result in totally destroying or materially impairing and interfering with defend ant’s use thereof * * * to his great and irreparable damage”?

At the outset, there can be no question that mere inconvenience to defendant or some damage which may be compensated for by plaintiff is not sufficient ground upon which to deny plaintiff’s prayer. (20 C. J. 605.) Plaintiff, by his petition, states he is willing to pay any damage to defendant plus the cost of enlarging the ditch.

What is the testimony that enlarging the ditch will destroy it? The theory that its enlargement would destroy it is based on the fact that defendant irrigates directly from it through some thirty-three taps and several laterals and that to divert the water through these outlets he uses a canvas or dirt dam. The testimony is that enlarging the ditch, together with its joint use, will make impossible irrigation from it by defendant by the use of these means of diverting the water through the taps. Plaintiff’s witnesses testify that boxes could be placed at intervals which would raise the water sufficiently to divert it through these taps and laterals and still permit sufficient water for plaintiff’s use to go by. Metlen, the engineer who testified for defendant, when questioned about this plan said diversion by this method was “perfectly possible but the question is whether it would be practical.” He then said it was a method commonly used. His objection to the practicability of the joint use of the ditch after enlargement and construction of the headgates was that “it would probably wind up in trouble,” but that would depend on whether or not the headgates were so constructed and so arranged as to permit plaintiff’s water to go through while defendant was irrigating. He does not testify that they could not be constructed and so arranged. He further testified that because there was not much fall in the ditch, it might be possible to irrigate out of several of the taps at once from the water backed up from one box. In other words, it would not be necessary to install a box or headgate for each tap or lateraL

The witness Fisher, called by defendant, says enlarging the ditch would make the use of the canvas and dirt dams impossible. He stated that the box and headgate system could possibly be used satisfactorily, but that in times when the water was low, putting a board in the box to raise the water level “would consume all the water there was at the time for irrigation.” But no other witness suggests this result, and this statement is obviously an opinion of the witness and there is no testimony of facts to support it. He, too, was concerned over the possibility of future trouble where two took out of the same ditch. He testified that while he rented defendant’s place, a tenant on plaintiff’s place irrigated a small tract from this ditch and they had had “not a particle” of trouble. There is other evidence showing that in the past, but without defendant’s permission, defendant says, a part of plaintiff’s land was irrigated through his ditch and an extension of it on plaintiff’s land.

Defendant’s testimony will not support the finding. His statements are that it would injure Mm in “ a good many different ways” and the use of the ditch by plaintiff would “in a way * * * have an effect on me and in another way * * * I do not think I could keep a renter on the place.” He stated as Ms opinion that “it would be awful hard to * * * with any satisfaction” irrigate his land from the enlarged ditch by use of the boxes suggested, as the water had to be taken out from so many different places.

The other testimony which is relied upon to show irreparable damage to support the findings is that there are low spots on defendant’s land which might, because of increased seepage which would occur because of the disturbance of the bottom and sides of the ditch in its enlargement, become water logged and sour.

Metlen testified: “It might fill up some of those pot holes in there. I don’t think it would have very much effect on the land after the increase in the capacity of the ditch was made.” Defendant stated that the seepage “would fill up a lot of those little pot holes in a way different than it would from my ditch, ’ ’ and that there would be more seepage and that “in a way it would” swamp the land “where the water stood the year around mostly,” but he does not know whether there would be such places. There is no evidence as to the number or size of these pot holes or their present value or the extent of the damage; however, defendant’s testimony indicates they are few and small since the seepage would affect by souring “in a way * * * places right around my buildings in there.”

The testimony of plaintiff’s witnesses that a feasible plan of installing headgates could be worked out so as to permit both to use the ditch is corroborated by defendant’s witnesses. It is apparent from the testimony that defendant’s use of the ditch will not be totally destroyed. The evidence shows that he may suffer some inconvenience but it shows no more than that. It is a well known fact in Montana that a great many, if not most, supply ditches are used jointly by two or more ranchers. And, of course, some inconvenience naturally follows, but to hold mere inconvenience, even though substantial, sufficient to deny plaintiff’s petition would destroy to a large extent the public policy of Montana encouraging the extension of the irrigation of our arid lands.

There is evidence on the part of both plaintiff and defendant that joint use of a supply ditch is common in Beaverhead county, and that ordinarily no trouble arises by reason of that joint use, particularly in the locality where the land in question lies.

The next question that arises concerns the legal question of whether or not, as a matter of law, one may condemn a right-of-way through a ditch on another’s land where the ditch is being used to irrigate the latter’s land. Defendant invokes subdivision 3 of section 9936, Revised Codes. Under this subdivision the real question is: Will the taking of this private property, already dedicated to one public use, destroy the prior public use? Or, in other words, will the enlargement and joint use of the ditch in question result in destroying or materially injuring the defendant’s right to the use of the ditch? That subdivision can only apply where there is a taking of the prop erty dedicated to a public use and appropriating it to another public use. The implication is clear that the legislature had in mind in enacting that subdivision, when it speaks of a more necessary public use than that to which the property is already dedicated, that the latter use is such as will destroy the prior use. That not being the case, subdivision 3 does not inhibit the condemnation here sought.

Appellant urges that subdivision 5 of that section contemplates this situation and under it he should prevail if not otherwise. Subdivision 5 provides: “All rights-of-way for any and all the purposes mentioned in section 9934, and any and all structures and improvements thereon, and the lands held and used in connection therewith must be subject to be connected with, crossed, or intersected by any other right-of-way of improvements, or structures thereon. They must also be subject to a limited use, in common with the owner thereof, when necessary; but such uses, crossings, intersections, and connections must be made in manner most compatible with the greatest public benefit and least private injury.”

That this subdivision contemplates irrigation ditches is shown by the specific reference to section 9934. That section defines public uses and subdivision 3 includes irrigation ditches. This court has had before it these sections of the statute on various occasions.

In the case of State ex rel. Butte-Los Angeles Mining Co. v. District Court, 103 Mont. 30, 60 Pac. (2d) 380, 383, this court, speaking through Mr. Justice Morris, held that a mining company could not condemn an exclusive right of way through another’s tunnel where the tunnel was already being used for the same purpose for which the condemnation was sought. The opinion indicates that the reason for refusing to allow the acquisition of the tunnel for a second public use was that the petition sought to make the second use exclusive and so destroy the first, the court saying: “We find no case where property is in use for a particular purpose by one party, either as owner or otherwise, in which any court has given another an exclusive right under the right of eminent domain to the same property. Defendant has cited a number of cases where land has been acquired and used by one party under the right of eminent domain and courts have granted to others a right in the same property where the new right did not materially conflict with the enjoyment of the older right. (Butte, Anaconda & Pacific Ry. Co. v. Montana Union Ry. Co., 16 Mont. 504, 41 Pac. 232, 31 L. R. A. 298, 50 Am. St. Rep. 508; Amador Queen Min. Co. v. Dewitt, 73 Cal. 482, 15 Pac. 74; Marsh Min. Co. v. Inland Empire Mining & Milling Co., 30 Idaho, 1, 165 Pac. 1128; Monetaire Mining Co. v. Columbus Rexall Consolidated Mines Co., 53 Utah, 413, 174 Pac. 172.) In the Idaho Case, supra, it was said: ‘The aid of eminent domain is extended to the industry [mining] not to the individual.’ We do not think that the plaintiff below has shown any sufficient grounds to justify the court in granting it the exclusive right to use the 51 feet of the tunnel running through the Lee claim.” Sections 9934 and 9936 apply to mining tunnels as well as to irrigation ditches.

In the Monetaire Mining Co. v. Columbus, etc., ease cited by this court above, plaintiffs sought to condemn a right to use a certain mine tunnel in common with the defendant. The provisions of the Utah Code are identical with subdivisions 3 and 5 of section 9936, and the court held that the relief sought should have been granted, saying: ‘‘It is contended that under Comp. Laws 1907, section 3590, subd. 3, property devoted to a public use can only be taken under the eminent domain statute ‘for a more necessary public use’ than the one for which it is appropriated. That no doubt is the law, and, so far as we know, is generally enforced in this country. It must also be conceded that the use appellant seeks to make of the tunnel in question is not a more necessary use than the one respondent is making of it. Appellant, therefore, cannot succeed under the clause of the statute last referred to. What appellant seeks is not to appropriate respondent’s tunnel and to dispossess the latter of its property rights therein or of its use, but what appellant seeks is to condemn the right to use the tunnel in common with the respondent; that is, to condemn the unused capacity of the tunnel. Where property is condemned for a more necessary use, the original condemner is deprived of his ownership and use. Such is not the case, however, where a second right to use the property or right of way is one in common with the present owner thereof. This distinction must be clearly kept in mind, and, if it is, no confusion can arise.”

In another of the cases cited by this court in that opinion, Marsh Mining Co. v. Inland Empire Min. & Milling Co., 30 Idaho, 1, 165 Pac. 1128, 1129, the court said: “Property devoted to, or held for, a public use is subject to the power of eminent domain if the right to so take it is given by constitutional provision or legislative enactment, in express terms or by clear implication, but it cannot be taken to be used in the same manner and for the same purpose to which it is already being applied, or for which it is, in good faith, being held, if by so doing that purpose will be defeated. * * * The purposes having been specified in sections 3223 and 3224, supra, for which property dedicated to mining may be appropriated, it follows that, unless it is being applied by its owner to, or in good faith held for, the same or a more necessary public use, which will be defeated or seriously interfered with thereby, it may be taken in aid of that industry under the power of eminent domain for one or more of these designated purposes and none other. * * * ” (See, also, Lewis on Eminent Domain, 3rd Ed., sec. 440.) In 20 C. J. 600, the rule is stated thus: “In other jurisdictions it is a statutory requirement that the second appropriation shall be for a ‘more necessary public use.’ But such requirement refers to a proceeding to dispossess the owner of his property and deprive him of its use altogether, and does not preclude condemnation for a joint use which will not interfere with the use thereof by the owner. ’ ’

The evidence and the law not supporting the findings on which the judgment is based, and the record showing that the relief sought by the plaintiff should have been granted, the judgment is reversed and the cause remanded with directions to proceed as here indicated.

Mr. Chief Justice Johnson and Associate Justices Angst-man and Anderson concur.