text:
    ELDON HUFFINE, HD Company, Plaintiff and Appellant, v. MIKE BOYLAN, Mike Boylan Excavating, Inc., Garth Sime, Sime Construction, Inc., Valley Bank of Belgrade, and Does 1 through X, Defendants and Respondents.
    No. 89-416.
    Submitted on Briefs Oct. 20, 1989.
    Decided Nov. 6, 1989.
    Rehearing Denied Nov. 21, 1989.
    782 P.2d 77.

      Eldon Huffine, Bozeman, pro se.
    Richard J. Andriolo, Berg Law Firm, Bozeman, for defendants and respondents.
   JUSTICE HUNT

delivered the Opinion of the Court.

Eldon Huffine, pro se plaintiff and appellant, appeals from an order of the District Court of the Eighteenth Judicial District, Gallatin County, dismissing his cause of action pursuant to Rule 37(b) (2)(C), M.R.Civ.P. We affirm.

The sole issue raised on appeal is whether the District Court properly granted respondents’ motion to dismiss pursuant to Rule 37(b) (2)(C), M.R.Civ.P., based on appellant’s failure to comply with the court’s order imposing discovery sanctions under Rule 37(d), M.R.Civ.P.

On March 22, 1989, a Notice of Deposition was mailed to Huffine, which set his deposition for March 29, 1989, at 1:30 p.m. Also, on that date, defendant personally served Huffine a subpoena duces tecum, which also notified him of the time and place. Huffine did not attend the deposition. The District Court entered an order pursuant to Rule 37(d), M.R.Civ.P., on April 17, 1989, imposing discovery sanctions in the amount of $828.50 against Huffine for failure to attend his deposition.

Huffine appealed the order to this Court and on June 1, 1989, we dismissed on the grounds that such orders are not appealable. Huffine has never complied with the District Court order to pay discovery sanctions.

On June 19, 1989, a hearing was held in which defendants moved for the dismissal of Huffine’s cause of action based on Huffine’s failure to comply with the District Court’s order. The motion was granted by order of the court on June 19, 1989. From the order, Huffine appeals.

Huffine contends that he was not given proper notice of the time and place for the taking of his deposition so he did not attend. Consequently, he claims that he need not pay sanctions imposed and that dismissal based upon nonpayment was improper. We disagree.

Huffine’s contention is unsupported by the evidence as he did not submit the transcript of the June 19, 1989, hearing for review on appeal. In Yetter v. Kennedy (1977), 175 Mont. 1, 7, 571 P.2d 1152, 1156, we stated:

“[T]he burden of showing error by reference to matters of record is upon the appellant.
“Unless the record that he brings before the court of appeals affirmatively shows the occurrence of the matters upon which he relies for relief, he may not urge those matters on appeal. (Citation omitted.)”

Hence, Huffine’s failure to transmit the transcript of the June 19, 1989, hearing violates Rules 9 and 10, M.R.App.P. The record, then, is the only evidence of which this Court can rely in making a determination on the issue at bar. The record reflects that Huffine was indeed served notice of his deposition both personally and by mail and, hence, the sanctions imposed were proper.

Imposition of sanctions for failure to comply with the rules of discovery are regarded with favor. Owen v. F.A. Buttrey Co. (Mont. 1981), [_Mont--,] 627 P.2d 1233, 1236, 38 St.Rep. 714, 716. See also Hanzel v. Marler (Mont. 1989), [237 Mont. 521,] 774 P.2d 426, 427, 46 St.Rep. 1020, 1022. Rule 37, M.R.Civ.P., sanctions are imposed in order to deter unresponsive parties. See Dassori v. Roy Stanley Chevrolet Co. (1986), 224 Mont. 178, 179-180, 728 P.2d 430, 431. In Landauer v. Kehrwald (1987), 225 Mont. 322, 325, 732 P.2d 839, 841, we stated:

“A party displaying an attitude of unresponsiveness to the judicial process warrants the imposition of sanctions including dismissal.”

While this Court accommodates pro se litigants when possible, Huffine is no stranger to litigation. He has been involved in thirteen District Court cases and has attempted several appeals.

Because Huffine was properly served with notice of his deposition in accordance with the Rules of Civil Procedure, and because he deliberately and intentionally failed to appear at the time and place set for the taking of his deposition, the District Court properly sanctioned him by dismissing his cause of action under Rule 37(b)(2)(C), M.R.Civ.P. Further, we conclude that this appeal is taken without substantial or reasonable grounds and, consequently, we impose additional damages in the amount of $300 pursuant to Rule 32, M.R.App.P., to be paid to the respondent. See Searight v. Cimino (Mont. 1989), [238 Mont. 218,] 777 P.2d 335, 46 St.Rep. 1217.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ and WEBER concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    JOHN C. HUGHES, as administrative manager of the Western Conference of Teamsters Pension Trust Fund, Plaintiff and Appellant, v. JIM BLANKENSHIP, d/b/a Blankenship Construction, f/k/a Blankenship Paving, Defendant and Respondent.
    No. 89-140.
    Submitted on Briefs Sept. 21, 1989.
    Decided Nov. 7, 1989.
    781 P.2d 1132.

      Michael C. Coil, Bozeman, for plaintiff and appellant.
    John F. Lynch, Great Falls, for defendant and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

The plaintiff, John Hughes, in his capacity as administrator of the Western Conference of Teamsters’ Pension Fund, initiated this suit to recover $45,427.39 owed by the defendant Jim Blankenship as a union contractor for unpaid contributions to the Pension Fund (Fund), plus damages and interest. Blankenship defends on the grounds that the collective bargaining agreement he entered with the Teamsters Union was to be applicable only to employees working on non-residential patching and paving jobs and that the collective bargaining agreement actually entered was entered into by mistake. The Union is not a party to this lawsuit.

Following a non-jury trial, the District Court entered judgment in favor of Blankenship, ordering the Fund to do an accounting of Blankenship’s contributions and to return all funds paid by Blankenship to his employees. From this decision the Fund now appeals. We reverse and remand.

The issues presented by the appellant are:

1. Is the District Court’s judgment consistent with the governing principles of federal labor law by which this case is controlled?

2. Was the contract between the parties ratified by the respondent’s actions such that he is not entitled to rescission?

3. Does the parol evidence rule bar admission of certain evidence herein, and if barred, does the remaining evidence support the District Court’s conclusions?

4. Can the District Court sua sponte order relief not requested by either party?

5. Is the appellant entitled to gather financial data from the respondent for the period of 1986 to 1988 for the purposes of an additional audit?

Since 1972 the respondent, Jim Blankenship, has owned and operated Blankenship Construction, formerly known as Blankenship Paving, in Butte, Montana. Pickets went up at the sites where Blankenship’s company was working in 1976. Following negotiations with union representative Jim Roberts, on July 8, 1976, Blankenship became signatory to the Highway and Heavy Construction Labor Contract then in force. As part of that document Blankenship was also required to sign a collective bargaining compliance agreement. Subsequent compliance agreements were signed on November 9, 1977 and July 31, 1981. In accordance with the original contract and the compliance agreements, Blankenship also signed employer-union pension certification documents, by which he agreed to be bound by the declaration of trust and pension plan of the Fund.

The Fund, in accordance with the terms of the contract, conducted an audit. Through the audit the Fund discovered that Blankenship was in arrears on his pension contributions.

When the Fund demanded back payment Blankenship refused, citing an agreement which he and Jim Roberts made at the time Blankenship entered into the Highway and Heavy Construction Labor Contract. The gist of the side agreement was that employees working on residential and small, commercial-type paving jobs would not be subject to the Highway and Heavy Construction Labor Contract. Blankenship believed these terms were written as part of the contract. At trial Blankenship testified that he only signed the contracts because union representative Roberts had assured him that he had no obligation under the union contract to make contributions to the pension trust fund for employees working on small commercial or residential paving jobs. An earlier audit performed by a Montana Teamsters Health and Welfare Trust Fund auditor gave credence to the agreement between Blankenship and Roberts, excluding Blankenship Construction employees engaged in residential, small commercial, and shop work from the coverage of the collective bargaining agreement. Only after his deposition in July of 1988, did Blankenship realize the agreement between himself and Roberts was oral rather than written.

Following a bench trial the District Court concluded that the contract between the parties should be rescinded because the mutual mistake of fact concerning the side agreement between union representative Roberts and Blankenship was so substantial and fundamental as to defeat the object of the parties. The court, in its findings of fact and conclusions of law, ruled that Roberts as an experienced union contract negotiator had either knowingly or negligently misrepresented the conditions under which a compliance agreement or a collective bargaining agreement could legally be executed. The District Court found that Roberts, in his deposition, admitted he made the representation to Blankenship that only employees working on “heavy” construction were subject to the contract and that the representation was not set forth in the standard form compliance agreement in contravention to federal labor law. Because both parties shared the misconception that there could be oral modification of the collective bargaining agreement as to when and where it applied, the District Court ruled the material mistake of fact mandated rescission of the July 8, 1976 compliance agreement and all subsequent compliance agreements, the collective bargaining agreements, and the trust agreements. The District Court further ordered an accounting of all contributions paid to the Fund by Blankenship on behalf of his employees and that the Fund return such contributions directly to those employees.

Because we find that the parol evidence rule prohibits the introduction of evidence regarding any oral modification of the labor contract, we will only specifically address appellant’s third issue. All remaining issues will only be dealt with tangentially, as they relate to the parol evidence rule in labor contracts.

Appellant brought this case to force the respondent to make contributions to the Fund in accordance with the labor contract and compliance agreements between respondent and the union. As such, the Labor Management Relations Act (LMRA), Section 301 et seq., 29 U.S.C. §§ 185 et seq., applies.

This Court has often noted that State courts possess concurrent jurisdiction with Federal courts but must apply Federal substantive law where suit has been initiated under the LMRA to enforce a contract between a labor organization and an employer. Audit Services, Inc. v. Clark Brothers Contractors (1982), 198 Mont. 274, 645 P.2d 953; Audit Services, Inc. v. Harvey Bros. Construction (1983), 204 Mont. 484, 665 P.2d 792; and Audit Services, Inc. v. Houseman (1987), 227 Mont. 57, 737 P.2d 71.

At trial appellant objected to the introduction of evidence of an oral modification to the collective bargaining agreement, namely the oral side agreement between Blankenship and Roberts exempting certain employees from coverage under the contract. The court heard testimony from both Blankenship and Roberts concerning the oral modifications. Appellant argues that by admitting such evidence the District Court violated the parol evidence rule. We agree.

As noted above, the State court must apply Federal law in labor contract disputes. In a leading case, the Ninth Circuit Court interpreted Federal statute 29 U.S.C. § 185(c)(5) to mean that written trust fund contribution obligations cannot be modified orally. Waggoner v. Dallaire (9th Cir. 1981), 649 F.2d 1362, 1366. Citing Wag- goner, this Court has previously held that parol evidence of oral modifications to contracts subject to the LMRA is inadmissible. Audit Services, Inc. v. Houseman, [227 Mont. 57,] 737 P.2d at 72; Audit Services, Inc. v. Harvey Bros. Construction, [204 Mont. 484,] 665 P.2d at 796. We so hold once again and reverse and remand for a hearing consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, SHEEHY and McDONOUGH concur.


author: JUSTICE HUNT

text:
    CLIFFORD MELROE, Plaintiff and Respondent, v. TERESA M. DOYLE, Connie J. Griffin, Steven E. Scheitlin, Susan M. Scheitlin, Daniel J. Scheitlin, Edward E. Scheitlin, Jr., Michael J. Scheitlin, and Vaeda G. Scheitlin, Defendants and Appellants.
    No. 89-289.
    Submitted on Briefs Aug. 17, 1989.
    Decided Nov. 7, 1989.
    781 P.2d 1134.

      John H. Jardine, Jardine & Grauman, Whitehall, for defendants and appellants.
    William M. Kebe, Jr. & Carol L. McGary, Johnson, Skakles & Kebe, Butte, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

The defendants appeal from an order of the District Court of the Second Judicial District, Silver Bow County, denying their motion for change of venue. We affirm.

The sole issue raised on appeal is whether the District Court erred in denying defendants’ motion to move the place of trial from the county in which four of the eight defendants resided to the county in which the contract relied upon in the complaint was to be performed.

Plaintiff, Clifford Melroe, brought this action for breach of contract and unjust enrichment in Silver Bow County, the residence of four of the eight defendants. The defendants moved for change of venue, claiming that Madison County was the proper place for trial as it was the county in which the contract was to be performed. The District Court denied the motion. The defendants appealed.

The statute governing change of venue for contract actions provides in pertinent part:

“(1) The proper place of trial for actions upon contracts is either:
“(a) the county in which the defendants, or any of them, reside at the commencement of the action; or
“(b) the county in which the contract was to be performed. (Emphasis added.)”

Section 25-2-121, MCA.

The statute reiterates the long-standing rule that, in contract actions, the plaintiff may elect to bring suit in either the county of the defendant’s residence or the county of contract performance. Either county is the proper place for trial. When a suit may properly be commenced in more than one county and the plaintiff files in one of the permissible counties, the defendant may not change .the venue of the action to a different county, even if the the county preferred by the defendant is also a proper place for trial. Section 25-2-115, MCA. See also Petersen v. Tucker (1987), 228 Mont. 393, 396, 742 P.2d 483, 484-85.

In the present case, the plaintiff could have properly filed suit in either Silver Bow County or Madison County. The plaintiff elected to commence the action in Silver Bow County. Such election was proper. The District Court did not err in denying the defendants’ motion for change of venue.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, Mc-DONOUGH and WEBER concur.


author: CHIEF JUSTICE TURNAGE JUSTICE SHEEHY,

text:
    LLOYD E. HARTFORD, Appellant, v. FLORENCE YOUNG, Claimant and Respondent, Billings Public School District, #2, Employer, EBI/Orion Group, Insurer.
    No. 89-51.
    Submitted Sept. 25, 1989.
    Decided Nov. 14, 1989.
    Rehearing Denied Dec. 5, 1989.
    782 P.2d 365.

      Vernon E. Woodward argued, Woodward Law Office, Billings, for appellant.
    Mike McCarter argued, Hughes, Kellner, Sullivan & Alke, Helena, for claimant and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Attorney Lloyd E. Hartford appeals the Workers’ Compensation Court’s affirmation of an order by the Division of Workers’ compensation directing the appellant to forfeit all attorney fees related to his representation of claimant Florence Young. We affirm.

ISSUES

1. Are Section 24.29.3801, ARM (1985), and the administrative hearings held thereunder invalid because they are inconsistent with Section 39-3-613, MCA, and the rule of Wight v. Hughes Livestock Co. (1983), 204 Mont. 98, 664 P.2d 303?

2. Did attorney Hartford’s actions violate either Section 39-3-613, MCA, or Section 24.29.3801, ARM (1985), and thereby justify total forfeiture of attorney fees?

FACTS

Florence Young submitted a claim for workers’ compensation following an injury incurred during her employment as a housekeeper at Meadowlark Elementary School in Billings, Montana. In November of 1985, insurer EBI/Orion Group paid the claimant a lump sum advance of $2,500 and in December of 1985, paid a further advance of $1,000.

In February of 1986, Mrs. Young retained Lloyd E. Hartford agreeing to pay the attorney,

“(a) For cases that have not gone to a hearing before the Workers’ Compensation Court, twenty-five percent (25%) of the amount of compensation payments the Client received due to the efforts of the attorney . . . .”

The agreement also stated,

“3. That as of the date of this Agreement, the Client has received benefits as follows: Amt. unknown and that no attorney’s fees will be charged on the aforesaid amount.”

The administrator of the Division of Workers’ Compensation approved the agreement in compliance with Section 24.29.3801, ARM (1985).

On April 24, 1986, with Hartford’s assistance, Mrs. Young received an advance of $12,466.65 which included $2,493.33 for attorney fees. The following April, the insurer notified Mrs. Young that she had received $4,312.05 in overpayments because she was receiving Social Security benefits which the insurer was entitled to offset. Thereafter, Hartford negotiated a full and final compromise settlement which provided that, “the Claimant agrees to accept the sum of $58,275.00 . . . plus insurer’s waiver of recovery of $20,278.70 overpayment and advance, for a total settlement of $78,553.70 . . . .”

Hartford calculated his attorney fees at $19,638.43, twenty-five percent of the final settlement, and submitted his claim to the Insurance Compliance Bureau. The claims examiner advised Hartford that it was inappropriate to charge for Mrs. Young’s overpayments and advances, and ordered the insurer to retain the attorney fees until the matter was settled.

During the subsequent contested case on the attorney fees, Hartford argued that the overpayment and advances were debts which the insurer agreed to waive only because of his negotiation efforts. The hearing examiner rejected this contention and awarded $14,568.75 in attorney fees, twenty-five percent of the $58,275.00 in “new money” obtained in the final settlement.

The hearing examiner deducted $1,000 from the attorney fees after determining that Hartford violated Section 39-71-613, MCA, and Section 24.29.3801, ARM (1985). The hearing examiner found that Hartford charged the claimant fees based on benefits he had not obtained — specifically, the $1,000 and $2,500 advances, and the $4,312.05 overpayment. The examiner also found that Hartford charged the claimant twice on the $12,466.65 lump sum advance.

Hartford appealed this decision to the administrator of the Division of Workers’ Compensation. The administrator agreed with the examiner’s findings and conclusions with the exception of the $1,000 forfeiture. The administrator held that Hartford had blatantly overcharged his client and made an example of him by requiring forfeiture of all fees.

Hartford then requested judicial review by the Workers’ Compensation Court. The court agreed with the administrator’s decision noting that forfeiture of fees is mandatory under Section 39-71-613, MCA. Hartford now appeals the Workers’ Compensation Court’s decision.

VALIDITY OF THE REGULATION AND HEARINGS

The appellant argues that the workers’ compensation regulation governing attorney fees is invalid because it is inconsistent with the statute under which it was promulgated and the factors set out by this Court in Wight v. Hughes Livestock Co. (1983), 204 Mont. 98, 114, 664 P.2d 303, 312.

Consideration of this issue is precluded by the appellant’s failure to raise it at the trial court level. Both parties fully briefed and argued this case before the lower court, but the record shows no indication that the appellant attacked the validity of the regulation. As a general rule, this Court will not review issues not raised before the Workers’ Compensation Court. Martinez v. Montana Power Co. (Mont. 1989), [239 Mont. 281,] 779 P.2d 917, 920, 46 St.Rep. 1684, 1687.

FORFEITURE OF FEES

We note at the outset that this Court is guided by the purpose of the workers’ compensation statutes. That purpose is protection of the interests of the injured worker. North American Van Lines v. Evans Transfer and Storage (Mont. 1988), 766 P.2d 220, 223, 45 St.Rep. 1848, 1852.

The Montana workers’ compensation statute on attorney fees provides:

“If an attorney violates a provision of this section, a rule adopted under this section, or an order fixing an attorney’s fee under this section, he shall forfeit the right to any fee which he may have collected or been entitled to collect.”

Section 39-71-613(3), MCA.

The workers’ compensation regulation in effect when this case arose provided that an attorney may not charge:

“(a) for cases that have not gone to a hearing before the workers’ compensation judge, a fee above twenty-five percent (25%) of the amount of compensation payments the claimant receives due to the efforts of the attorney.”

Section 24.29.3801, ARM (1985).

Appellant Hartford argues that the Workers’ Compensation Court erred in relying on the current version of the regulation, Section 24.29.3802, ARM (1987), instead of the version which controlled at the time the dispute arose, Section 24.29.3801, ARM (1985). The appellant is correct, but the error is harmless. For the purposes of this case, the regulations are essentially identical in wording and meaning.

Prior to reaching the Supreme Court, appellant Hartford argued that he did not violate the attorney fees regulation by charging Mrs. Young for the advances and overpayment. He asserted that they were debts which the insurer waived due to his negotiating efforts.

We agree that in workers’ compensation cases, an attorney may bill for debts waived through the attorney’s efforts. A waiver of debt is a benefit to the claimant obtained by the attorney and is fully compensable within the limitations of the attorney fees regulation.

The regulation limits compensation in at least two aspects. First, an attorney may not charge more than twenty-five percent of the compensation “the claimant receives.” Section 24.29.3801, ARM (1985). The regulation looks first to the claimant’s recovery in capping attorney fees. Undoubtedly, an attorney may become involved in several distinguishable efforts in securing a single recovery for the client. In such cases, agency approval of increased fees may be appropriate. See Section 24.29.3801(4), ARM (1985). However, absent such approval, the attorney may not bill more than twenty-five percent on each amount received by the client.

Second, the recovery must be “due to the efforts of the attorney.” Section 24.29.3801, ARM (1985). Whether the attorney’s efforts brought about the waiver, as opposed to a voluntary waiver by the insurer, is a question of fact to be determined by the hearing examiner. See Sections 2-4-621(2), 2-4-623, MCA.

Appellant Hartford also argues that he made a mistake in calculating his fees and is being excessively punished for pursuing a good faith claim. We agree that a simple mistake in calculation should not result in total forfeiture of attorney fees. However, we do not agree that his is a good faith claim.

Hartford consistently and vehemently argued that he was entitled to additional attorney fees for Mrs. Young’s advances and overpayments because they were debts the insurer waived through Hartford’s negotiating efforts. He made this argument in a series of letters to Judge Reardon of the Workers’ Compensation Court after Mrs. Young complained to the judge about Hartford’s excessive fees. He maintained the same inflexible position before the hearing examiner, the administrator, and the Workers’ Compensation Court.

Now before this Court, Hartford admits for the first time that he was not entitled to those fees, and asserts that he was merely mistaken in his calculations. If Hartford’s former argument is incorrect at this appellate level, he should have known that it was incorrect at the agency level. We cannot credit Hartford with good faith in pursuing attorney fees under a theory which even he admits is without legal merit.

We agree with the Workers’ Compensation Court that Hartford violated the regulation in at least two instances. First, Mrs. Young received the two advances totaling $3,500 prior to retaining Hartford. Those advances were settlements of future benefits owing to Mrs. Young and not debts she was required to repay. Charging for those benefits violates the regulation because, as appellant now admits, the claimant received those advances due to her own efforts and not Hartford’s. Furthermore, the parties’ agreement stated that the attorney would not charge for amounts previously received. To now label these advances debts waived through the attorney’s efforts is at least a violation of their agreement.

Second, Mrs. Young received a $12,466.65 advance through Hartford’s efforts, but he was paid $2,493.33 for those efforts. To now call this advance a waived debt would allow the attorney to charge a twenty-five percent fee in addition to the twenty percent fee already received.

We hold that attorney Hartford’s attempts to overcharge the claimant are in violation of the attorney fees regulation and the purposes of the workers’ compensation statutes. Total forfeiture of fees is required by Section 39-71-613(3), MCA. As the Workers’ Compensation Court noted, this is a harsh result considering that Mrs. Young received more than $58,000 through Hartford’s efforts. However, the statute is clear and it is mandatory. Affirmed.

JUSTICES HARRISON, BARZ, WEBER and HUNT, and CHIEF JUSTICE FRANK I. HASWELL, retired, sitting for JUSTICE Mc-DONOUGH concur.

JUSTICE SHEEHY,

dissenting:

This is indeed a harsh result. The biblical avouchment that the laborer is worthy of his hire applies even to lawyers.

I don’t understand the majority opinion. It affirms that waiver of a debt owed by the worker to another, where the waiver is gained through the attorney’s effort, is a benefit to the claimant for which the attorney should receive compensation. Then the majority assert that his compensation is limited to moneys “the claimant receives.” The majority derive that clause from a regulation adopted by the Department. However the regulation itself is a departure from the language of the statute on which the regulation must depend. Section 39-71-613(2) provides the Department may regulate attorneys fees, but in so regulating, says the statute, the Department shall consider: “(a) the benefits the claimant gained due to the efforts of the attorney.”

According to my dictionary (Webster’s New Collegiate Dictionary (1981)) “receive” means “to come into possession of’; on the other hand, “gain” refers to “resources or advantage acquired or increased”; or again, “to cause to be obtained or given.” Here, Mrs. Young did not receive money when the debts were forgiven; she gained an advantage in not having to pay the debts.

In Board of Barbers v. Big Sky College, Etc. (1981),_Mont. _, 626 P.2d 1269, 1271, an administrative rule that required a year’s apprenticeship in “a commercial barbershop” prior to examination, when the statute required a year’s apprenticeship served “under the immediate personal supervision of a licensed barber” was held invalid. In State ex rel. Swart v. Casne (1977), 172 Mont. 302, 308-309, 564 P.2d 983, 986, this Court struck down a rule of the Department of Health that defined “Occasional sale” in conflict with the statute on the same subject. Those cases should lead us here to say that the regulation, Section 24.29.3801 (ARM (1985)) is an invalid restriction on the right of an attorney to be paid for his work under § 39-71-613(2), MCA.

Hartford, of course, is not entitled to attorney fees for the two advances totaling $3,000.00, nor for the advance of $12,466.65 for which he was paid. He was mistaken as to those items, but against those items must be weighed the threat, now actuality, that he should get no fees for his successful representation of his client. The positions of the Department and Hartford hardened, and vengeance set in. He gained for his client, according to my calculations, $63,087.05, for which he was entitled to $15,771.76 in attorney fees. A loss of that amount is a very severe jolt to an attorney whose livelihood depends on success, and losers are loss items. Hartford is being punished for daring to stand up to the Department and to insist on his rights.

I can’t think of a criminal case in our state where a fine exceeding $15,000.00 was ever assessed. Hartford is being treated worse than a criminal.

I would order payment to Hartford of his rightfully earned attorney fees.


author: MR. CHIEF JUSTICE BRANTLY,

text:
    STATE ex rel. SHIELDS et al., Relators, v. SECOND JUDICIAL DISTRICT COURT et al., Respondents.
    [No. 1,490]
    [Submitted February 2, 1900.
    Decided March 12, 1900.]

      Executor — Lease-of* Decedent’s Lands — Authority of Court— Order — Modification—Revocation—Petition.
    1. Under Code of Civil Procedure, Sections 2720, 2722, the district court has authority to enter an order directing an executor to make a lease of his decedent’s lands for the term and the rental and to the parties specified in the order.
    2. Under Code of Civil Procedure, Sections 2720, 2722, after the district court has made an order directing an executor to make a particular lease specified in the order, no discretion is left to the executor; the duty is obligatory upon him to carry out the order of the court according to its terms.

      3. Under Code of Civil Procedure, Sections 2720, 2722, the district court has power to modify an order, previously made, as to amount of rental, where the executor and the lessees have agreed to the modification.
    4. Under Code of Civil Procedure, Sections 2720, 2722, the court has no power, against the objection of the person designated in an order as the lessee, to revoke an order directing the executor to lease land to such person at a fixed rental, where he has accepted and complied with the conditions of the order, though the executor has subsequently had a more favorable offer.
    5. Code Civil Procedure, Sections 2720, 2722, provides that when it appears to the court by a verified petition that it is for the best interests of the decedent’s estate to lease its lands, the court may authorize the executor to lease the same. One B., who has acted as spokesman for himself and others in negotiating with the executor for the lease of decedent’s lands, after the court had made an order authorizing the execut- or to execute the lease to him and his associates, withdrew his application without the knowledge of his associates, and the court, on a stipulation entered into between B. and the executor, made an order permitting the withdrawal of the offer to lease and the security filed for the performance of the terms thereof. Held, that a subsequent order, directing the executor to execute a lease to B’s. associates, while the order withdrawing the proposal was unrevoked, and no new petition was filed, was unauthorized and void.
    6. Under Code of Civil Procedure, Sections 2720,2722, upon an application for leave to execute a lease to K., the district court cannot grant a lease to other parties who are not before it.
    7. Under Code of Civil Procedure, Sections 2720, 2722, the district court cannot, of its own motion, without any application, or notice, or hearing, grant a lease to any person making it known that a lease is desired.
    8. The power of the district court, when sitting in probate matters, is limited by the provisions of the statute from whence such power is derived.
    9. Code Civil Procedure, Section 2720, provides that the court or judge may authorize an executor to lease his decedent’s lands on it being made to appear by a verified petition filed that it is for the best interests of the estate so to do; and Section 2722, Subdivision 6, provides that no omission, error, or irregularity in the proceedings to secure an order, authorizing an executor to lease his decedent’s lands shall invalidate the same, or the lease made in pursuance thereof. Held, that the latter provision does not dispense with the necessity of a verified petition by some authorized person, and notice to all parties interested, and an order made without such formalities is void.
    Application in the name of the State of Montana, on the relation of Daniel Shields and another, as executors of the estate of James Tuohy, for a writ of certiorari to annul an order made by the district court of the Second judicial district.
    Order annulled.
    Statement op the Case.
    Application for writ of certiorari to annul an order made by the district court of the Second judicial district directing Cyril Pauwelyn, as executor of the last will and testament of James Tuohy, deceased, to execute a lease to D. J. Ryan and C. J. McSherry of certain mining property belonging to the testator’s estate.

      From the affidavit and the record certified up from the district court the following facts appear: Cyril Pauwelyn, one of the applicants for the writ, is the duly-appointed executor of the last will of James Tuohy, deceased, and is acting as such .under the jurisdiction of the said court and the Honorable Judge Lindsay, one of the judges thereof. On February 28, 1899, the executor filed his verified petition in said court, asking that an order be made permitting him to lease the property to John Britt, C. J. McSherry, and D. J. Ryan for the term of two years; and also to authorize him to grant the lessees an option to purchase the property for the sum of §60,000 at any time during the term of the lease. The petition sets forth all the matters required by law to be contained herein, including the terms and conditions of the lease. The rental is stated as agreed upon at “20 per cent, of the net smelter returns of all ores extracted and taken from the said premises,” the lessees to render monthly account thereof. On March 22, 1899, after due publication of notice, a hearing was had. Thereupon an order was made and entered authorizing the lease as prayed for, but denying the request for permission to the executor to grant the lessees an option to purchase. The formal order was entered on March 25th. It set forth specifically the terms and conditions of the lease, and fixed the rental to be paid at the rate stated in the petition as agreed upon between the parties, leaving no option to the executor to accept any greater rate if he could obtain it. On March 30th the executor filed another petition, reciting the proceedings under his former petition, and the order made in pursuance thereof. It then proceeded to show that subsequent to the date of this order the executor had received an offer from other parties, who proposed to take a lease upon the same terms as Britt, McSherry, and Ryan had offered to do, with the additional stipulations that they would pay the executor §500 in cash as a bonus; that they would pay as rental 25 per cent, of the net smelter returns from ores extracted; and that they would give security for the performance of certain development work — involving an expenditure of $3,000 — required by the lease authorized by the original order. The court was asked to revoke the former order, and, as the lease authorized therein had not been executed, to permit the executor to accept the offer set forth in the second petition. This petition was heard, after notice to Britt, McSherry, and Ryan, and on April 17th an order was made in which the court refused to-revoke the former order “at present. ” The executor was directed to ascertain from Britt, McSherry, and Ryan if they would meet the more favorable terms set forth in the petition, and to report their wishes to the court. The order also stated that, if they would meet these terms, the lease would be ordered made to them. At this point the record is somewhat obscure, but it is admitted that the facts are that it was reported to the court that Britt, McSherry, and Ryan would accept the more favorable terms mentioned by the executor in the petition of March 30th, and were willing that the original order of March 25th be modified accordingly. On April 19th another order was made and entered, which, after reciting all the former proceedings, modified the order of March 25th, and directed the lease to be executed in conformity with the new arrangement. This order fixed the rental, at 25 per cent, of the net smelter returns from the ores extracted from the property, leaving the executor no option to accept any other offer. On April 29th the court ordered a citation to issue to the executor directing him to appear before the court on May 6th to show cause why the lease had not been executed to Britt, McSherry, and Ryan, as theretofore directed. At the date fixed in the citation the executor appeared, and filed an answer to the citation, giving as a reason for his failure to act under the order of April 19th that neither Britt, nor McSherry, nor Ryan, nor any one for them, had tendered to him the sum of $500 bonus; that no one for them had tendered any bond to guaranty the expenditure of the $3,000 in development work, as required by the order of April 19th; that on the evening of April 19 th, after the order was made, he received an offer of a bonus of $1,000 for the lease with the same terms as those provided for in the order of that day; and that he deemed it his duty to accept this last offer. Before the hearing under the citation, Britt, McSherry, and Ryan complied with the order of April 19th, by depositing in the hands of the clerk of the court the sum of $500, and a bond in the. sum of $6,000 to guaranty the expenditure of the $3,000 in development work. In the meantime, and on April 24th, the executor had filed a petition, again reciting the history of the proceedings, showing to the court the facts touching this last offer, and asking that he be permitted to execute a lease upon the property involved to the parties making the last offer at a minimum rental to be fixed by the court. This petition the court refused to entertain. On April 26th, Daniel Shields, the other relator herein, filed his petition as a creditor of the estate, alleging the same facts as those stated in the petition of the executor, and asking for the same relief as that demanded in the executor’s last petition. This was set for hearing at the time fixed for the hearing under the citation. A hearing was had, and on May 8th the execut- or was directed to execute the lease to Britt, McSherry, and Ryan, notwithstanding the matters set forth in the answer to the citation. The questions presented by the petition of Shields were taken under advisement. On May 13th the court entered an order denying the petition of Shields.
    On May 16, 1899, a stipulation was filed in the proceeding by the attorneys for the executor and Britt, by the terms of which Britt was permitted to withdraw from the hands of the clerk the bonus of $500, and the bond to guaranty the development work, and all proposals theretofore made for a lease in behalf of himself, McSherry, and Ryan. On May 20th an order was made by the court permitting this stipulation to be carried out, and it was done. Thereafter, on May 29th, the executor filed another petition reciting all the former proceedings in connection with the lease and the withdrawal by Britt of the deposit of the money and bond in acceptance thereof under the orders of April 19th and May 8th, and asking permission of the court to lease the property to one Silas F. King upon the terms offered on April 19th, and set forth in the petition presented by the executor on April 24th and in that of Shields on April 26th. To this petition objection was made by McSherry and Ryan, they averring that Britt was not authorized by them to withdraw the bond and bonus deposited by him for himself and them in acceptance of the lease ordered made to him and them under the order of April 19th, and affirmed by the order of May 8th; that his action in withdrawing these by stipulation was a fraud upon themselves, and prejudicial to their rights; that, as soon as they ascertained what had been done, and on May —, 1899, they had deposited with the clerk $500, and a good and sufficient bond, as required by the order of April 19th; and that they should be permitted to have the lease notwithstanding the unauthorized action of their associate Britt. On June 10th, after a hearing upon this last petition and the objections thereto by McSherry and Ryan, and without any other or further notice than that given upon the filing of the petition of the executor on February 28th, the court entered an order denying the petition of the executor and sustaining the contention and claim of McSherry and Ryan. This order directed the executor to execute the lease to McSherry and Ryan under the order of April 19th, leaving the order of May 20th in full force and effect, unchanged and unmodified. It further appears from the record that Britt, so far as he was connected with the proceedings herein, was acting in his own behalf and as the spokesman for McSherry and Ryan. It is not disclosed whether any proof was heard by the court under the petition of May 29th and the objections thereto by McSherry and Ryan.

      Mr. F. F. Corbett, Mr. FL. Lowndes Maury, and Mr. J. W. Cotter, for Relators.

      Mr. De Gay Stivers, and Mr. William I. Lippinoott, for Respondents.
   MR. CHIEF JUSTICE BRANTLY,

after stating the case, delivered the opinion of the Court.

The contentions made by counsel require an answer to two questions:

(1) Was the order of April 19th in excess of the jurisdiction of the district court for the reason that it named a fixed rental to be paid by Britt, McSherry and Ryan?

(2) Was the order of June 10th void by reason of the stipulation filed in the proceeding on May 16th, and the order made in pursuance thereof on May 20th, authorizing Britt to withdraw the acceptance of the lease by him for himself and associates with all proposals for a lease?

The power of the district court to authorize an administrator or executor to lease the real estate, or any part of it, in his hands for the purpose of administration, is derived from the Code of Civil Procedure, Secs. 2720, 2722. Section 2720 provides:

“Whenever it appears to the court or judge, to be for the advantage of the estate to raise money by mortgage of the real property of the decedent, or any part thereof, or to make a lease of said realty, or any part thereof, the court or judge, as often as occasion therefor shall arise in the administration of any estate, may, on a petition, notice and hearing as provided for in this article, authorize, empower and direct the executor or administrator to mortgage or lease such real estate or any part thereof. ’ ’

The mode of procedure is provided in section 2722. The portions of it requiring notice here are the following:

“To obtain an order to lease the realty, the proceedings to be taken and the effect thereof shall be as follows:

“(1) The executor, administrator, or any person interested in the estate, may file a verified petition showing: the advantage or advantages that may accrue to the estate from giving a lease; a general description of the property proposed to be leased; the term, rental and general conditions of the proposed lease; and the names of the legatees and devisees, if any, and of the heirs of the deceased, so far as known to the petitioner. * * *

‘ ‘(4) At the time and place appointed in the order to show cause, or at such other time and place to which the hearing may be postponed, the court or judge having first received satisfactory proof of personal service or publication of the order to show cause, must proceed to hear the petition and any objections that may be filed or presented thereto. Upon such hearing witnesses may be compelled to attend and testify in the same manner and with like effect as in other cases, and the court or judge may, in its or his discretion, appoint one or more, not exceeding three, disinterested persons to appraise the rental value of the premises, and direct that a reasonable compensation for their services, not to e'xceed five dollars per day, to be paid by the estate. If, after a full hearing, the court or judge is satisfied that it will be for the advantage of the estate to lease the whole or any portion of the real estate, an order must be made authorizing, empowering and directing the executor or administrator to make such lease. The order may prescribe the minimum rental to be received for the premises, and the period of the lease, which must in no case be longer than tor five years, and may prescribe the other terms and conditions of such lease.

“(5) After the making of the order to lease, the executor or administrator must execute, acknowledge and deliver a lease of the premises, for the rent, and period, and with the conditions specified in the order, setting forth in the lease that it is made by authority of the order, and giving the date of such order. A certified copy of the order shall be recorded in the office of the county clerk of every county m which the leased land or any portion thereof lies.

“(6) Every lease so made shall be effectual to demise and let, at the rent, for the term, and upon the conditions prescribed therein, the premises described therein. Jurisdiction of the court to administer the decedent’s estate shall be effectual to vest such court and judge with jurisdiction to make the order for the lease, and such jurisdiction shall conclusively inure to the benefit of the lessee, his heirs and assigns. No omission, error or irregularity in the proceedings impairs or invalidates the same, or the lease made in pursuance thereof. ’ ’

Subdivisions 2 and 3 contain provisions touching the form and contents of the notice to be given, and the time and mode of service. It is not necessary to examine these matters further than to note the requirement that the notice must contain mention of the term and rental contemplated by the proposed lease. There is no question here but that there was proper notice of the original application. The contention is made by counsel for the relators that the order of April 19th was in excess of jurisdiction, for the reason that the court or judge could not, under the foregoing provisions of the statute, fix at a specific sum or rate the rental to be paid by the lessees. The provision contained in the last sentence of subdivision 1, they say, requires a minimum to be fixed, so that it may be left to the discretion of the executor or administrator to secure a greater sum or rate, if he can. It therefore follows, also, they insist, that the court or judge should not, in the order, name the lessee or lessees, but the iepresentative of the estate should be left unrestricted in the exercise of his discretion, except as to the length of the term, the minimum rental, and the other terms and conditions of the lease; so that he may be free to accept or reject offers from persons who may not be known as desiring a lease at the time the order is made. In short, their contention is that the power of the court or judge is exhausted when the order is made permitting a lease at a minimum rental upon suitable conditions. The executor or administrator will then be free to carry out the order when, -in his discretion, a suitable offer has been made. If this oi\der was without jurisdiction,- the conclusion must be that the order of June 10th was void, since it was founded upon the former order, without reference to the conditions existing on June 10th. It is clear that this contention cannot be sustained. The provisions of subdivision 1, supra, clearly contemplate a case where the executor or administrator has already exercised his discretion, and made all the arrangements and agreements with some particular person or persons for a lease, subject to the order of the court or judge, and presents his petition asking for authority to carry out the arrangement. For if, after a hearing upon proper notice, as provided in subdivision 4, this officer’s acts are approved, and it is found to the advantage of the estate to make the lease, ‘ ‘an order must be made authorizing and directing the executor or administrator to make such lease;” that is, the lease asked for in the petition, and mentioned in the notice as containing a fixed rental, a specified term, and certain conditions. After the order is made, ‘ ‘the executor or administrator must execute, acknowledge and deliver a lease, of the premises for the rent and period and with the conditions specified in the order. ’ ’ The lease shall also give the date of the order, and state that it is made under the authority thereof. (Subdivision 5.) Furthermore, “every lease so made shall be effectual to demise and let,” etc., and the jurisdiction of the court or judge to make the order “shall conclusively inure to the benefit of the lessee, his heirs and assigns. ’ ’ (Subdivision 6.) All these provisions taken together seem clearly to have in view the idea that at the end of the proceedings, and after the order is made, there is nothing left for the representative of the estate to do but carry out the order according to its terms. This duty is obligatory upon him. No discretion is left. To all intents and purposes the lease is the act of the court or its judge, and the executor or administrator becomes but the agent, without discretion, to execute it. For it cannot be admitted that it is not the duty of the court or judge to inquire into the responsibility, both moral and financial, of the lessee, and the prospect that the promised rent will be paid, and the other conditions of the lease carried out.« Contrary to the contention of counsel, the provision contained in the last sentence of subdivision 4 is in full accord with these ideas. Clearly, this has reference to a case where the court or judge disapproves, or does not entirely approve, of what the representative has proposed, or where it is deemed advisable to insert other conditions and agreements in the contract, the better to guard the interests of the estate and to meet contingencies likely to arise during the term. It may be advisable to require security for the faithful performance of the conditions of the lease, and the lease may be conditioned upon the furnishing of this. There may be circumstances indicating that rents will fluctuate during the term. It might be desirable to direct the lease to be conditioned to meet this contingency. In the exercise of a sound discretion this could be done. By fixing a rental for the time being with provisions for the payment of a greater or less amount upon the happening of certain contingencies, but never a less amount than a specified minimum, the estate would be assured a revenue at no time less than that produced by the minimum rate, and would profit by an increase in values. This provision seems peculiarly applicable to the conditions arising in a state like ours, in which property interests often depend upon mining enterprises, and rents and values are subject to frequent and violent fluctuations. Especially applicable is it to a case like the present, where the only property belonging to the estate consists of mines, which, from their situation and surroundings, are probably of great value, and it is desirable to save them to the estate, and at the same time meet the demand of its creditors. All the provisions of subdivision 4, supra, clearly have to do with the powers and duties of the court or judge, and have no reference to those appertaining to the executor or administrator. The addition of the last provision to this subdivision can only be regarded as a more specific definition of the discretionary powers vested in the court or judge.

We do not think the statute as a whole contemplates leaving any of the substantial conditions or agreements in the lease to the final discretion of the representative. Certainly, the provisions of subdivision 4 do not. The minimum rental which a court might fix in a particular case would depend upon conditions enumerated in the lease, and the determination of them would be entirely without the discretion of the representative.

In making the order of March 25th the district court was clearly within its lawful powers. So it was within its discretion to make the order of April 19th, modifying its former order, the lessees and executor having agreed to the modification. It was also its duty to refuse to revoke this order without the consent of the lessees after they had accepted its terms and complied with them on their part. After this had been ■done, the court had no authority to revoke it upon the facts disclosed in the record upon the filing of the petition of April 24 th.

The order made on June 10th directing the executor to execute the lease to McSherry and Ryan was without jurisdiction and void. Throughout the .proceedings looking to the making of the lease Britt was the representative of himself and his associates. . He accepted the terms of the original order, and also of the order of April 19th, and complied with the terms of the latter by paying down the $500. bonus, and furnishing the required bond. Thereupon, and before the' order had been carried out, moved by considerations not disclosed by the record, he stipulated with the executor for a release from the agreement, and the court confirmed that stipulation. He then withdrew the money and bond from the hands of the clerk, and also all proposals theretofore made to the executor for a lease. This left the matter in the same position as it was before the original application was made by the executor. If the release was proper, there was at the date of the order nothing before the court but the application for permission to lease to Silas F. King. If the release was not proper, still the executor was not in a position to carry out the order of April 19th as long as the order of May 20th remained unchanged. As the latter stood, it virtually revoked the former order, and the court, in making the order of June 10th under this condition of the record, did so in the absence of any application before it upon which this latter order was based. For it cannot be claimed that upon an application for leave to execute a lease to Silas F. King the court would grant a lease to other parties who were not before it. McSherry and Ryan were not there asking for a lease, but were objecting to the application on behalf of King. They had no one petitioning for them. They were not interested in the estate, and could not make any application on its behalf. If they had been defrauded of their rights by their associate, they should

have applied to the court to have the order of May 20th set aside. In this way only could they be heard, if they could be heard at all. If the court could grant them a lease under these circumstances, then it could, of its own motion, without any application or notice, or hearing, grant a lease to any person making it known that a lease was desired. This the court could not do. Its power when sitting in probate matters is derived from the statute, and it cannot go beyond the provisions of the statute. (State ex rel. Bartlett v. Second Judicial District Court, 18 Mont. 481, 46 Pac. 259; In re Higgins’ Estate, 15 Mont. 474, 39 Pac. 506, 28 L. R. A. 116.) Jurisdiction over the estate, and the power arising therefrom to make the order for a lease, inure to the benefit of the lessee only when they have been invoked by proper application. The error, omission or irregularity referred to in the latter part of subdivision 6 of the statute, upon which counsel relies for a justification of the order of June 10th, certainly does not warrant dispensing with a verified petition by some authorized person, and notice to all parties interested.

The order of the district court made and entered on June 10th must be annulled. It is so ordered.


author: MR. JUSTICE HUNT

text:
    TOOHEY, Respondent, v. CAMPBELL, et al., Appellants.
    [No. 1,444.]
    [Submitted January 23, 1900.
    Decided March 12, 1900.]

      Water Bights — Irrigation—Appropriation—Gla/imant’s Intent — Beneficial Use.

    1. No one, by prior appropriation, can obtain exclusive control of an entire stream, or any part thereof, for irrigation purposes, unless the appropriation is for some beneficial purpose, existing or contemplated, and not for mere future speculative profit or advantage.
    2. The right to the use of water, obtained by actual prior appropriation, diversion, and application of the water to a beneficial use then present or contemplated, may be owned without regard to the title to lands upon which the water is to be used.

      3. As, under Civil Code, Section 1881, every appropriation of water must be for a beneficial or useful purpose, either existing or contemplated, a claimant’s intent at the time of appropriation must be determined by his acts, and by surrounding circumstances, its actual and contemplated use, and the purpose thereof.
    4. Plaintiff’s prior grantor claimed land under a squatter privilege, and in June, 1868, made an irrigating ditch to the land, having at that time about ten acres cultivated. In 1876, having about twenty-five acres inclosed, he made a timber-culture entry embracing the land possessed under the squatter privilege. Reid, that while the appropriator was entitled to sufficient water to irrigate his whole claim after the entry in 1876, he could not be allowed more than fifty inches for the appropriation of 1868, since, the timber-culture act not having been passed until 1873, he could not have intended at the time of the appropriation in 1868, a beneficial use of more water than a quantity sufficient for the land thereafter reduced to possession, prior to 1876.
    5. Where the amount of water for irrigation to which a settler was entitled under an appropriation was determined by the extent of beneficial use to which he intended to put it at the time of appropriation, his intent being determined by the extent of the tract actually reduced to possession and cultivated, the intent could not be enlarged by the fact that he had a partner in his undertaking.

      Appeal from, District Court, Gallatin'County; F. K. Armstrong, Judge,

    Action by Pat Toohey against W. S. Campbell and another and B. Graham, intervenor, to establish an irrigation water right. From a judgment in favor of plaintiff, defendants appeal.
    Modified.

      Mr. Lewis Penwell and Messrs. McConnell dc McConnell, for Appellants.

      Messrs. „ Holloway c& Hoffman, for Respondent.
   MR. JUSTICE HUNT

delivered the opinion of the Court.

Plaintiff, who is the respondent here, brought this action against defendants (appellants) to establish his right to the use of 200 inches of the waters of the East Gallatin river, flowing through what is known as the ‘ ‘Flannery Ditch, ’ ’ in Gallatin county. Defendants answered, denying plaintiff’s right to the use of said waters or said ditch, and setting up their own claims to certain lands, and the use of certain waters from the said East Gallatin river, through the said Flannery ditch. B. Graham intervened, claiming a right to use certain water through said ditch, and denying plaintiff’s alleged rights.

There was a trial to a jury. Special findings and general verdict were returned in favor of plaintiff, by which plaintiff was declared to be entitled to the use of 200 inches of the waters of the East Gallatin river as appropriated in June, 1868, with a right to use the Flannery ditch for the conduct of said waters. The court adopted the general verdict and special findings, made certain other findings of its own, and adjudged the plaintiff, defendants, and intervenor to be tenants in common in the Flannery ditch, and that plaintiff was entitled to the use of 200 inches of water of the East Gallatin river, to flow through the Flannery ditch.

Defendants appealed from the judgment, presenting, by a bill of exceptions, the question whether the court was justified by the evidence in allowing plaintiff the use of 200 inches of water from June, 1868, which put plaintiff’s entire right upon an equal footing with the rights of the defendants and the intervenor, or whether plaintiff should have'been limited to a right to use only 50 inches as appropriated in June, 1868, and the other 150 inches as appropriated in December, 1876. We so state the question because the following material facts were testified to by plaintiff’s witnesses:

William Flannery said that he had known the land claimed by plaintiff, and called the “Toohey Land,” since 1866, and was also familiar with the lands belonging to the defendants and the intervenor; that he had lived on the Campbell land and on the Davis land, and had had these lands inclosed and cultivated; that he settled on the Toohey land about January 1, 1866, and constructed two ditches for the land, — one for himself, and the other in partnership with others; that in 1889 his individual ditch had a capacity of 3,500 inches, and that this is what is known as the ‘ ‘Flannery Ditch, ’ ’ which was used in connection with the Toohey land; that out of this ditch water was first put on the Toohey land in 1869, there having been in cultivation at that time about 10 acres of the tract, and that water had been used on the land every year after 1869 until July 9, 1885, at which time there had been brought under cultivation on the Toohey land about 50 acres; that on July 9, 1885, the land was fenced with other land about it, and there were irrigating ditches upon it at that time; that up to July, 1885, the land had been irrigated by a ditch taken out of the Flannery ditch which ran around the Campbell land and across the south end of the Toohey land; that on December 15, 1876, he made a timber-culture entry on the Toohey land, and this timber-culture entry was kept in force until the said 9th of July, 1885, when he relinquished his rights in favor of his mother, who continued to improve the land, and eventually obtained patent for it. Witness also said that, since his mother took possession in July, 1885, she had used the water on the land through the Flannery ditch; that he had used the water of that ditch to irrigate the land, as he did the Campbell and Davis lands; that from 1885 to 1896 about 145 acres of the ground had been in cultivation, and that there was plenty of water flowing through the Flannery ditch to irrigate the Toohey land and the Davis and Campbell lands, except in occasional years, when the water was short. The cross-examination brought out that witness simply had an ordinary squatter’s claim to the land when he took out the ditch; that he was not claiming it under the homestead or pre-emption laws, and that he pre-empted a part of this land afterwards, and made a homestead upon part of it, but that the part he took up under the timber-culture act was the Toohey land; that in 1868 he had inclosed with a fence about 25 acres of the Toohey land, and that in 1878 more of it was inclosed, as also in 1880. Witness said that he had had a partner at first in the settlement he made upon these lands, and that he and his partner claimed 480 acres at that time; that he afterwards bought his partner out; that he first ran water through the Flannery ditch on the Toohey land about the last of May, 1869; and that Toohey bought the land from his mother.

A witness named Arnold testified that a part of 40 acres of the Toohey land was fenced in 1869; that in that year some 6 or 8 acres had been irrigated, but that he could not state that there was ever any land cultivated on the Toohey tract, except a little piece that had been irrigated, before 1876.

The plaintiff testified that he had known the land since 1878, and that there had been about 25 or 30 acres in cultivatian when he first knew it, but that it was all in cultivation at the time he testified, and that the water to irrigate the land was procured from the Flannery ditch.

Upon the foregoing undisputed facts we believe the defendants are entitled to have the decree of the district court modified so as to allow plaintiff the right to the use of but 50 inches of water through the Flannery ditch as of a date in June, 1868, together with the right to the use of 150 inches as of December 15, 1876, when Flannery took up 160 acres as a timber-culture claim. Certain principles controlling the law of water rights direct us to this conclusion. One of the rules in the system of the law of water rights is that no one man can, by prior appropriation, obtain exclusive control of an entire stream, unless his appropriation is made for some beneficial purpose, presently existing or contemplated. He is restricted in the amount that he can appropriate to the quantity needed for such beneficial purposes. ‘The intention of the claimant is, therefore, a most important factor in determining the validity of an appropriation of water. When that is ascertained, limitation of the quantity of water necessary to effectuate his intent can be applied according to the acts, diligence, and needs of the appropriator.’ (Power, et al. v. Switzer, 21 Mont. 523, 55 Pac. 32.)

The policy of the law is to prevent a person from acquiring exclusive control of a stream, or any part thereof, not for present and actual beneficial use, but for mere future speculative profit or advantage, without regard to existing or contemplated beneficial uses.

We recognize the doctrine that right to the use of water may be owned without regard to the title to lands upon which the water is to be used; that is, that a right to the use of water is a possessory one, that may be obtained by actual appropriation and diversion, perfected by application of the water so appropriated to a beneficial use then present or contemplated, and made before appropriation and use by another. But, as every appropriation must be made for a beneficial or useful purpose (section 1881, Civil Code), it becomes the duty of the courts to try the question of the claimant’s intent by his acts and the circumstances surrounding his possession of the water, its actual or contemplated use and the purposes thereof.

When, therefore, we look into the facts of the case under consideration, in our judgment, Flannery, as the appropriator of the water, never meant to use it, at the time of the diversion, upon any portion of the Toohey land other than the part inclosed, or prior to 1876. It cannot be said that he contemplated acquiring title to any part of the Toohey land not under cultivation, for he states that he used the only rights he could then avail himself of,- — pre-emption and homestead upon adjoining lands, — and admits his only claim to the Toohey land before 1876 was a squatter’s privilege. As the timber-culture act was not passed until 1873, and was not proceeded under by Flannery until 1876, he could not have had in contemplation acquisition of title to the land under this law before its enactment by congress; while he never claimed or possessed but about 25 acres under any other right before 1876. Hence it seems clear that his intent, in 1868, in the then present and contemplated use of the water then diverted, never reached beyond the purpose of irrigating the part of the Toohey tract inclosed, or about 25 acres only. Of course, when he took up the land in 1876, embracing his former inclosure and possessory claim, his right to the use of sufficient water to irrigate his whole claim from'that time forward must be recognized, and is conceded by appellants. But his rights up to 1876 must be limited to a quantity sufficient to irrigate what he then had in actual possession. This amounted to no more than 25 acres, for which a right to the use of 50 inches is sufficient.

The fact that Flannery had a partner, who was also claiming land, cannot help extend an intent that could not possibly have existed in his or his partner’s mind at the time of the diversion of the water. Neither of them ever inclosed but few acres of the Toohey ground, or irrigated more, or defined the boundaries of any greater tract, or otherwise did any act evincing an intent to use water upon any larger area than the portion actually cultivated from 1868 to 1876.

The cases of McDonald v. Lannen, et al., 19 Mont. 78, 47 Pac. 648, and Wood v. Lowney, et al., 20 Mont. 273, 50 Pac. 794, are not pertinent, as in each of these instances the extent of the 'right of use was measured by the confessed bona jide claim to the lands sought to be irrigated. The intentions of the settlers at the times of their diversions were not the points upon which the cases turned for decision.

We recognize that possessory rights upon the public domain will be protected, and that appropriations of water for the benefit of squatters’ claims will be upheld, but such appropriations must always be for beneficial uses then existing, or contemplated in the future, and as against others, who have initiated rights, will not avail, where there is no actual possession held, and where it is evident none was claimed with a purpose of securing privileges and rights under the laws of the United States existing when the squatters went upon the unsurveyed tracts.

Flannery is, therefore, only entitled to 50 inches as of June, 1868, ’and the decree should be modified as indicated herein.

The cause is remanded, with directions to modify the decree as herein indicated, and, when so modified, the judgment will be affirmed.

Modified and afivrmed.


author: MR. JUSTICE PIGOTT

text:
    SMITH, Appellant, v. DENNIFF, Respondent.
    [No. 1,118.]
    [Submitted January 16, 1900.
    Decided March 12, 1900.]

      Water Sights — Appropriation—Easement—Appurtenance to Land — Burden of Proof — •Mortgage—Abandonment— Sight to Possession.

    1. Where one rightfully in possession of nonriparian land under a contract with the owner appropriates water from the public domain, and conducts it by means of a ditch on the public domain to, and continuously uses it on, such land, he acquires title to the water right and ditch; and it does not become appurtenant to the land in the absence of a conveyance from the appropriator to the owner of the land, — but will pass under a mortgage by the appropriatorof the land and water right.
    2. Under the laws of Montana an appurtenance to land must be an easement. ■
    3. A water right when once appropriated includes and comprehends an easement.'
    4. A water right, legally acquired, is in the nature of an easement in gross, which according to circumstances may or may not be an easement annexed or attached to certain land as an appurtenance thereto.
    5. The legal title to the land upon which a water right lawfully acquired by appropriation on the public domain is used, or intended to be used, in no wise affects the appropiator’s title to the water right.
    6. Where one holds land by defective or inchoate title, and a servitude upon or an easement in it by a valid title, the servitude or easement is not extinguished by unity of possession.
    7. An easement can become legally attached to a parcel of land as appurtenant thereto only by unity of title in the same person to both the dominant estate and the easement claimed.
    8. The record on appeal in water right cases should contain a diagram of the situation of the ditches over which the litigation has arisen.
    9. One who asserts that a water right and'ditch are appurtenant to certain lands has the burden of proving it, and, if he claims title thereto, he must connect himself with the title of the prior appropriator.
    10. Section 1078 of the Civil Code cannot be construed to deprive one having merely a possessory right in land, who appropriates a water right from the public domain for use on such land, of his title to such water right and make it appurtenant to the land, the title whereof is in another, since such interpretation would be violative of Section 1882 of the Civil Code. ,
    11. Where one who has appropriated water from the public domain for use on land, of which he is in possession under a contract with the owners thereof, mortgages his water rights, he will not be deemed to have abandoned such rights, so as to defeat the mortgagee’s title.
    12. Where one having a right to the possession of land appropriates water from the public domain for use on such land, and subsequently mortgages such right, the fact that the mortgagee has not used the water will not defeat an action by him against the ow.ner of the land, or one in privity with him, to obtain possession of and use of such water right, since until foreclosure the mortgagee would have no right to possession.
    On Rehearing.
    Former opinion (23 Montana, 65) reversed, and judgment below
    reversed.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

After the opinion heretofore rendered in this case (23 Mont. 65, 57 Pac. 557), the court of its own motion granted a rehearing. Additional briefs and oral arguments have been filed and made, and we are satisfied upon further consideration that the conclusion announced in the former opinion is erroneous.

The ultimate question presented for decision is whether a certain water right is appurtenant to a certain parcel of land. As preliminary to the determination of this question, it is necessary to investigate the nature of a ‘ ‘water right, ’ ’ how title to the same may be acquired, the character of its ownership, and its relation to other real property.

A water right may be defined to be the legal right to use water. The right to the use of running water is a corporeal right or hereditament which follows or is embraced by the ownership of riparian soil. It is a corporeal right running with riparian land. (Hill v. Newman, 5 Cal. 445; Cary v. Daniels, 8 Metc. (Mass.) 480.) A water right can therefore be acquired only by the grant, express or implied, of the owner of the land and water. The right acquired by appropriation and user of the water on the public domain is founded in grant from the United States government as owner of the land and water; such grant has been made by congress. ( Wood v. Etiwanda Water Co., 122 Cal. 152, 54 Pac. 726; Welch v. Garrett, (Idaho) 51 Pac. 405.) This grant by the government applies, however, only to the public domain owned by the United States. (Note to Heath v. Williams, 43 Am. Dec. 280, 25 Me. 209); therefore, where the absolute title to riparian soil on a stream has passed from the United States before any right to the water by prior' appropriation has become vested in any person, no such right can be acquired afterwards under the grant of congress; and the common-law rule as to the rights of riparian owners would apply, were it not for the fact that the state of Montana has by necessary implication assumed' to itself the ownership, sub modo, of the rivers and streams of this state, and, by section 1880 et seq of the Civil Code, has expressly granted the right to appropriate the waters of such streams, which right if properly exercised in compliance with the requirements of the statutes, vests in the appropriator full legal title to the use of such waters by virtue of the grant made by this state as owner of the water. But this privilege or right to appropriate the water of a stream can in any and every case be taken advantage of or exercised only by one who has riparian rights, either as owner of the riparian land, or through grant of the riparian owner. A trespasser on riparian land cannot lawfully exercise there any right to such water or acquire any right therein by virtue of section 1880 et seq. of the Civil Code. (Alta Land Co. v. Hancock, 85 Cal. 219, 24 Pac. 645.) One may not acquire a water right on the land of another without acquiring an easement in such land. (St. Helena Water Co. v. Forbes, 62 Cal. 182); and an easement is an interest in land that cannot be created, granted or transferred except by operation of law, by an instrument in writing or by prescription. (Section 1500 of the Civil Code; Great Falls Waterworks Co. v. Great Northern Ry. Co., 21 Mont. 487, 54 Pac. 963.) Nothing here said is to be understood as a modification of the doctrine of McDonald v. Lannen, 19 Mont. 78, 47 Pac. 648, or of Wood v. Lowney, 20 Mont. 273, 50 Pac. 794. The right to appropriate water on the land of another for a public use may be obtained through condemnation proceedings under the right of eminent domain. (St. Helena Water Co. v. Forbes, supra.) In California it cannot be so obtained for a private use. (Lorenz v. Jacob, 63 Cal. 73.) Under Section 15, Article III, of the Constitution of Montana, the use of appropriated water is made a public use. (Ellinghouse v. Taylor, 19 Mont. 462, 48 Pac. 757.) By section 1880 et seq. of the Civil Code the right is conferred upon any one to make a valid appropriation of water on the unsold state lands. ( Wood v. Etiwanda Water Co., supra.) But such permission can and does apply only to lands owned by the state. As owner of thq stream, it has granted the right to appropriate the water of the stream, yet it does not pretend to legalize the exercise of such privilege, in violation of the vested rights of other landowners, as well might it be said that by reason of the game laws, permitting all persons to fish in the streams of this state, it therefore follows that anyone has a vested right to exercise this privilege wherever there is a stream, in defiance of the vested rights of the property owners, — that is to say, by reason of the game laws a landowner has no rights which a fisherman is bound to respect. The mere statement of such a proposition is a demonstration of its fallacy. It is therefore apparent that absolute legal title to a water right can only be acquired by grant, express or implied, of the riparian owner of the land and water.

It may be remarked, obiter, that the common-law doctrine of riparian rights assured to each riparian owner the right to the reasonable use, without substantial dimunition in quantity or deterioration in quality to the detriment of other riparian proprietors, of the water of a stream flowing by or over his land. The doctrine of “prior appropriation” confers upon a riparian owner, or one having title to a water right by grant from him, the right to a use of the water of a stream which would be unreasonable at the common law, and to this extent the doctrine of prior appropriation may be said to have abrogated the common-law rule.

Section 1078 of the Civil Code defines an “appurtenance” as follows: “A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way, or water course, or of a passage for light, air or heat from or across the land of another.” A “water course from or across the land of another” is an easement, and by reference to section 1250 of the Civil Code it is plain that in the contemplation of the Code an appurtenance to land is in any and every case an easement. For example: A. owns a parcel of land, to irrigate which he has lawfully appropriated, and by right is using, water. The ditch through which the water is conveyed is also owned by him, and is partly upon his land and partly upon the land of B. The water right is an appurtenant to A.’s land, and that part of the ditch which is upon B.’s land is an easement of A. therein, and is also appurtenant to the land of A., but that part of the ditch which is upon A.’s land is not appurtenant thereto, but is part and parcel of the land itself.

A legal appropriator of water may change the place of its use, and may use the water for other purposes than that for which it was originally appropriated. (Section 1882 of the Civil Code; Woolman v. Garringer, 1 Mont. 544; Wimer v. Simmons, 27 Or. 1, 39 Pac. 6; Fuller v. Swan River P. Mining Co., 12 Colo. 12, 19 Pac. 836.) The right thus acquired to take water from or over the land of another is therefore in the nature of an easement in gross (Civil Code, Section 1251, Subdivision 6; Bank v. Miller, 7 Sawy. 168, 6 Fed. 545; DeWitt v. Harvey, 4 Gray, 488; Goodrich v. Burbank, 12 Allen 462), which, according to circumstances, may or may not be an easement annexed or attached to certain land as an appurtenant thereto.

For the purpose of illustrating the practical application of the foregoing principles, we shall consider a few cases of common occurrence:

(a) A. has absolute title in fee to riparian land. Under the statutes of Montana he is clothed with the right, by compliance with the provisions of the statute, to appropriate a water right, subject, of course, to the vested rights of prior appropriators. Now, being the owner of riparian land, he can, as has been shown, legally exercise this privilege on his own land; and, when he has perfected such inchoate right by fulfilling the requirements of the statute, the legal title to such water right becomes vested in him, — not, however, by reason of any common-law riparian rights as owner of the soil, but by reason of statutory grant. Title to the land and title to the water right are in A.’s case two distinct things, each derived from a separate source. The question now presents itself: Is the water right thus acquired by A. an appurtenance to the land of A. upon which it is used? We have already attempted to show that an appurtenance to land under the laws of Montana must be an easement. In this case A. owns the land bordering on the stream as well as under it; his water right and ditch are on his own land, and as a servitude or easement thereon cannot be held by the owner of the servient tenement (Section 1254 of the Civil Code), and, as a servitude is extinguished or merged by the vesting of the right to the servitude and the right to the servient tenement in the same person (Section .1260 of the Civil Code), it might seem as if it were impossible that A.’s water right and ditch could be an appurtenance to A. ’s land. So far as A’s ditch on his own land and the water right in it are concerned, it is self-apparent that they cannot be easements, and they are therefore not appurtenant to the land, — they are part and parcel of the land. The right to the use of the running water (that is, the right to appropriate water on one’s own land) is a corporeal hereditament; but the water when once appropriated includes and comprehends an incorporeal hereditament, to wit: the right to have the water flow in the stream, without diminution or deterioration, to the head of the ditch or place of diversion,.— an easement in the stream, and a servitude upon upper riparian lands. (Subdivision 11, Sec. 1250, of the Civil Code; Lower King's River Water Ditch Co. v. King's River & Fresno Canal Co., 60 Cal. 408; Cary v. Daniels, supra; Wyatt v. Irrigation Co., 18 Colo. 298, 315, 33 Pac. 144.) The water right of A., therefore, being confessedly by right used with his land, could be an appurtenance thereto, and upon a conveyance in writing of the land by A., no reservation being made in the deed, such water right, being attached to the land, would pass as an appurtenance thereto if at the time of the conveyance of the land A. had title to both land and water right.

(b) B. owns nonriparian land. He cannot, therefore, take up a water right on his own land. He has, however, by statutory grant, the privilege of appropriating water upon the public domain or upon land owned by the state; if, however, there is no such land of which he can avail himself for the purpose of appropriating a water right, then, of necessity, he must acquire by grant, express or implied (or by condemnation under the power of eminent domain), from some riparian owner the right to exercise the statutory privilege, — that is to say,- he must acquire an easement in or a servitude upon the land of another, for, without an easement in or a servitude upon the property of another, B cannot possibly lawfully acquire a water right (St. Helena, Water Co. v. Forbes, supra,); and such can be acquired only by an instrument in writing. In the case of B. certain distinctions must be kept in mind; the right to an easement in the stream is derived from statutory grant, the means of acquiring this right he must obtain from a riparian owner; the latter embraces two things: (1) The right to divert the water on the land of the grantor; and (2) the right to conduct the water across the land of the grantor. A grant of the first right would doubtless carry with it the right to convey the water across the grantor’s land; that is, a right of way for the water over the land. It would be an easement of necessity. On the other hand, a mere grant by a riparian owner of a right of way for conducting water over the land of the grantor would not convey to the grantee the right to appropriate or divert water on the land of the grantor. (Zimmler v. San Luis Water Co., 67 Cal. 221.) If, however, B. does properly obtain the right to appropriate on, and conduct water across the land of another, or if he does so over the public domain or state lands, and thereby makes a valid appropriation of a water right, and uses the same on his non-riparian land, in either case such water right and ditch is an easement in or servitude upon the land of another, and is therefore an appurtenance to his nonriparian land, title to the easement and title to the dominant estate being both united in B.; and upon a conveyance of his land the water right and the ditch would pass as appurtenances thereto, provided no reservation thereof is made in the deed.

(c) C. has possessory right to government riparian land. In this case C., of course, has the privilege, by statutory grant, of appropriating a water right for the land which he occupies, and, when appropriated in compliance with the requirements of the law, the legal title to such water right becomes vested in him. It is a positive, certain, and vested property right, for the legal title to the land upon which a water right lawfully acquired by appropriation on the public domain is used, or intended to be used, in no wise affects the appropriator’s title to the water right. (Santa Paula Waterworks v. Peralta, 113 Cal. 38, 45 Pac. 168.) The water right thus acquired by C. is, as we have already shown, an easement in the stream, and, until he acquires title, a burden upon the land which he occupies but does not own, the title to which double easement (or to the easement and servitude) becomes vested in him by virtue of the grant of the government. The servitude upon the land under such circumstances does not become merged or extinguished by reason of his being in possession of the land, for where one holds land by defective or inchoate title, and a servitude upon or an easement in it by a valid title, the servitude or easement is not extinguished by unity of possession (Tyler v. Hammond, 11 Pick. 193); nor can it be technically an appurtenance to the land upon which it exists, for, as we have seen, a burden or servitude, to be appurtenant to the land, must be a burden or servitude upon other land. Under these circumstances, if C. obtains title to the land from the United States, his servitude upon or easement in the land is immediately extinguished (Section 1260 of the Civil Code),' and becomes part and parcel of the land; but before he acquires title to the land his servitude thereon or easement therein is a vested interest in the public domain, and can only be transferred • by an instrument in writing. Now, as to his water right, viewed only as an easement in the stream: This, as we have seen, is an incorporeal hereditament, — an easement not attached to land, and therefore akin to an easememt in gross at the common law, title to which is vested in C. But an easement, to be appurtenant to a parcel of land, must be attached to the dominant estate. (Swazey v. Brooks, 34 Vt. 451; Spaulding v. Abbot, 55 N. H. 423; Crooker v. Benton, 93 Cal. 366, 28 Pac. 953; Green v. Collins, 20 Hun. 474, 86 N. Y. 246; Ward v. Farwell, 6 Colo. 66.) It can become legally attached only by unity of title in the same person to both the dominant estate and the easement claimed. (Meek v. Breckenridge, 29 Ohio St. 642.) C.’s water right, therefore, cannot become an appurtenance to the land of which he is possessed until he obtains title thereto from the government, or transfers his title to his water right to the owner of the land, and such transfer can be made by an instrument in writing only.

(d) D. has possessory right to government nonriparian land. If D. lawfully acquires a water right upon the public domain, and conducts water by a ditch over the public domain to the land which he occupies, and uses the same thereon, it is clear, from the results reached in the foregoing discussion, that such water right and ditch will not become an appurtenance to the land occupied by D. until he obtains title thereto from the government, or conveys his water right and ditch to the owner of the land.

With the foregoing established legal principles kept in mind, let us proceed to the consideration of the case at bar. At the very outset of the investigation of the record in this case the language of the Court in Wood v. Lowney, 20 Mont, at page 275, and 50 Pac. at page 794, is most apt: “Our labors in the case before us would have been somewhat simplified, and, indeed, would be generally simplified in water right cases, by having incorporated into the record a diagram of the situation of the ditches over which the litigation has arisen. ’ ’

The record does not clearly disclose, but upon the oral argument counsel conceded, that Cosins appropriated the water from the public domain, and that he was then in possession of a certain parcel of nonriparian land under a contract with its owner; what the contract was does not appear; he was, however, admittedly in rightful possession of the nonriparian land, the title to which was in another. His water right was legally acquired by an appropriation thereof on the public domain; he conducted the water, by means of a ditch over the public domain, to the land he was occupying, and used the water thereon. It is conceded that he made a valid appropriation of the water, and, as we have endeavored to show, tbe legal title to the land upon which a water right acquired by appropriation made on the public domain is used or intended to be used in no wise affects the appropriator’s title to the water right, for the bona fide intention which is required of an appropriator to apply the water to some useful purpose may comprehend a use upon lands and possessions other than those of the appropriator, or a use for purposes other than those for which the right was originally appropriated. (Section 1882 of the Civil Code; Nevada Ditch Co. v. Bennett, 30 Or. 59, 45 Pac. 472.) Title to the water right and ditch therefore vested in Cosins, and this precludes the possibility of their passing to the Northern Pacific Railway Company, the owner of the land, as appurtenances to the land, without a conveyance in writing. One who asserts that a water right and ditch are appurtenant to certain lands has the burden of proving that they are appurtenances, and must connect himself with the title of the prior appropriator. The water right of Cosins was property distinct from his estate in the land of the railway company upon which he was using the water, and his design, successfully executed, was to mortgage the water right, even if he should fail to acquire title to the land included in the mortgage, and upon which the water was then being used.

In the case at bar the defendant does not assert or pretend that , there ever was any conveyance by Cosins of his water right to the Northern Pacific Railway Company, the owner of the land; and, since an easement can only become legally attached to land by unity of title in the same person to both the dominant, tenement and the easement claimed, it is apparent that the Northern Pacific Railway Company could not grant or convey the water right to the defendant as an appurtenance to its land, for the reason that it has never owned the same, and therefore the right and ditch have never been legally attached as appurtenant to the land now occupied by the defendant. (Bliss v. Kennedy, 43 Ill. 67; Manning v Smith, 6 Conn. 289.) The water right, not being owned by the railway company, did not constitute a part of its estate. Section 1078, supra, may not be interpreted to mean that a water right acquired by prior appropriation by one who has only possessory title to the land, although with the intent at the time to use the water upon such land, shall, by the mere act of using it as intended, become inseparably attached as an appurtenance, and the appropriator thereby lose his water right. Such an interpretation would not only violate recognized custom and legal principles, but would render inoperative the provisions of Section 1882 of the Civil Code.

The common-law rule that an easement acquired by a tenant as an appurtenance to the land inures to the benefit of the landlord upon the expiry of the tenancy (Dempsey v. Kipp, 61 N. Y. 462) is, for the reasons we have stated, inapplicable to cases arising under the statutes in respect of prior appropriation of water rights; but, even if it were held to apply in a qualified sense, it could at the most affect only the ditch as an easement, and it would by no means follow that the water right of Cosins has become an appurtenance to land in section 17. (Philbrick v. Ewing, 97 Mass. 133.) The water right is in no sense so incident or attached to the land in section 17 upon which it was used as to be incapable of use apart from that land.

The contention that Cosins abandoned his water right by executing a mortgage thereof cannot be successfully urged in this case. (Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 39 Pac. 1054.) Some argument is advanced that neither the plaintiff nor his assignor, the mortgagee, was actually using the water; but this fact is immaterial; it, of itself, does not impair plaintiff’s present right to the possession and use of the water. Plaintiff or his assignor never was entitled to possession until after foreclosure and sale; the right to the possession was meanwhile vested in Cosins. The defendant’s possession prior to the sheriff’s deed will not be presumed to be wrongful, —indeed he asserts rightful possession — and he will be presumed to be the licensee or tenant of Cosins in the water right, and, when his licensor's or landlord’s right to possession ceased, his own fell with it.

The judgment is reversed, and the cause remanded

Reversed and remanded.

Mr. Chief Justice Brantly, being disqualified, took no part in this decision.