author: MR JUSTICE MILBURN, Mr. Chimb Justice Beastly: ]\Ik. Justice Pigott:

text:
    CITY OF HELENA, Appellant, v. ROGAN et al., Respondents.
    (No. 1,684.)
    (Submitted January 23, 1902.
    Decided April 29, 1902.)

      Eminent Domain — Condemnation of Water — City Water Supply — Power of Municipality — Complaint — Sufficiency — ■ Description of Property — Water Rights.

    1. 'Political Code, Sec. 4800, as amended by Laws of 1897, p. 203, gives a city tbe right to acquire by condemnation proceedings water rights for the purpose of establishing a water supply system.
    2. The owner of a valid water right owns a certain incorporeal hereditament incident to his water right, to-wit, an easement in the stream and its tributaries above his point of diversion. He also has the right to require junior appropriators, who take water from the stream or its tributaries below his point of diversion, to forbear using such water when such use will deprive appropriators prior to him, downstream, of the use of water to which they are entitled.
    3. In case of injury to a water right resulting from a tortious act in another county, the action may be brought in either county.
    4. under Code of Civil Procedure, Sec. 610, requiring that actions for the recovery of real property or an interest therein, or for injuries thereto, shall be tried in the county in which the subject of the action or part thereof is situated, and Section 2216, providing that condemnation proceedings shall be brought in the district court of the county in which the property is situated, proceedings to condemn water appropriated for irrigation purposes may be brought and tried in the county in which the land is situated, though the water is to be taken in another county.
    ■5. A complaint by the city for the condemnation for a water supply of certain water rights in a stream is not defective for failing to allege that the water supply can be procured without incurring an indebtedness which, with the existing indebtedness, will exceed 3 per cent, of the assessed valuation, or that the limit was extended by having the question sub- • mitted to the voters, and that a majority of the votes was in favor of the proposition, notwithstanding Constitution, Art. XIII, Sec. 6, prohibiting a city from incurring an indebtedness, including existing indebtedness, exceeding 3 per cent, of the assessed valuation, unless the limit shall be extended by a vote of the people for the purpose of procuring a water supply.
    6. A complaint by a city for the condemnation of water rights in a stream for a water supply is not defective for failing to allege that it has a right of way to the stream, or that it will be able to get one.
    7. Condemnation proceedings are statutory, and a strict compliance with the requirements of the statute is necessary. .
    8. A complaint by a city for the condemnation for a water supply of water rights in a stream, alleging that defendants “claim to be the owners of and entitled to the right” of a designated quantity of water of the stream "for irrigating purposes” in a certain county, is fatally defective for failing to describe the lands, the number and size of the ditches thereon or appurtenant thereto, and the place of diversion, though it would involve great labor and expense to so describe the property.
    9. Tinder Code of Civil Procedure, Sec. 2214, Subd. 3, providing that, before property already appropriated to some public use can be taken under the right of eminent domain, it must appear that the public use to which it is to be applied is the more necessary use, water appropriated for irrigation purposes may be condemned for the purpose of procuring a city water supply, where the use for which it is to be taken is more necessary than the existing use.
    10. A complaint in proceedings to condemn for a city water supply water already appropriated to a public use must allege facts which show that the use for which the water is to be taken is more necessary than the existing use, the relative degrees of necessity being a question for judicial determination.
    11. Quaere: In a proceeding by a city for the condemnation of water rights for a water supply, is a complaint good which does not state facts sufficient to show the court that it is impossible for the city to appropriate an ample supply from the unappropriated waters of the stream?
    12. Quaere: In a proceeding by a city for condemnation of water rights for a water supply, is a complaint or decree good if it employ only the word “inches” in relation to the measurement of water?

      Appeal from District Court, Leíais and Clarice County; J. M. Clements, Judge.

    CONDEMNATION proceedings for tlie purpose of establishing, a water supply system by the city of Helena against Hugh J. Rogan, the Ames Realty Company, and others. From a judgment for defendant the Ames Realty Company, plaintiff appeals.
    Affirmed.
    Statement oj? the (’ase.
    • This cause is before us on appeal from the judgment of the district court in favor of the defendant Ames Realty Company and against the plaintiff.
    The plaintiff, in 1900, brought proceedings in the district-court of Lewis and Clarke county in eminent, domain against 1J6 defendants, including the Ames Realty Company, to condemn certain property. The complaint alleges that on the 3d day of December, 1900, the city council of the city of Helena duly passed and adopted an ordinance for the purpose of acquiring by condemnation 350 inches of the water and water rights of McClellan creek, and those water rights, of Prickly Pear creek comprising the waters of said McClellan creek, for the purpose of procuring a water supply for said city, which shall own and control said supply, and devote the revenues derived therefrom to the payment of the debt incurred therefor; that the only provision of the ordinance describing what water and water rights should be condemned is as follows: “Sec. 3. That of the water and water rights of said McClellan creek and its tributaries, situated in Jefferson county, state of Montana, and all those water rights of Prickly Pear creek, situated in Jefferson and Lewis and Clarke-counties, state of Montana, comprising the waters of said McClellan creek, three hundred and fifty (350) inches be condemned for the purpose of procuring a water supply for said city of Helena, which shall own and control the same, and devote the revenues derived therefrom to the payment of the debt incurred therefor.” A particular description of McClellan creek, alleging tbat it is a tributary of Prickly Pear creek, and situated wholly in Jefferson county, is then set forth. Then follows a particular description of Prickly Pear creek from its confluence with McClellan creek ro its mouth at the Missouri river. From the description, it is seen that the distance from the confluence of McClellan creek to the boundary line between Lewis and Clarke county and Jefferson county is about one and four-fifths miles, and that the remainder of Prickly Pear creek to its intersection with the Missouri river is wholly in Lewis and Clarke county; further, that all the water rights sought to be condemned by this action are expressly described as being only those taken from that portion of Prickly Pear creek exclusively in Lewis and Clarke county.
    It is further averred that ‘‘said 350 inches of water and water rights sought to be taken is a part of and does not include all of the waters of McClellan creek and those water rights of Prickly Pear creek comprising the waters of said McClellan creek.” It is alleged “that the city of Helena has not now, and never has had, a water supply or water system of its own; that the use to which said water and water rights are to be applied is a public use, duly authorized by law, to-wit, the procuring of a good, pure, wholesome, and abundant- supply of water for the said city of Helena and its inhabitants; * “ * and that the taking of 350 inches of water and water rights is«necessarv to such use.”
    Paragraph 16 of the complaint is as follows: “’On information and belief [it is alleged] that each of the above-named defendants has or claims to have some right- or interest in those water rights of Prickly Pear creek in Lewis and Clarke county aforesaid, which comprise the waters of said McClellan creek, each of which .said -rights or interests are hereinafter more particularly described.”
    Following paragraph 16, the- complaint contains a description of the respective interests of each of the 176 defendants to the right to (he use of the waters of said Prickly Pear creek in Lewis and Clarke county, and, inasmuch as the only description pertinent to this inquiry is that of the Ames Realty Conu pany, there is set forth only that portion of the complaint describing said company’s interests, viz., it is alleged “on information and belief that the said defendants Ames Realty Company, Henry Sepple Ames, Bradford Improvement Company, Mary C. Bradford, and Lucy Y. S. Ames are or claim to be the owners of and entitled to the right to the use of about two hundred and seventy-five (215) inches of the waters of said Prickly Pear creek in said county of Lewis and Clarke; dating from about the 1st day of April, 1866, for irrigating purposes in said county; and that, by reason thereof, of the said three hundred and fifty inches of water hereby sought to be taken, they are or claim to be the owners of and entitled to the right to the use of about two and one-lialf inches of the said waters of Prickly Pear creek comprising the waters of said McClellan creek, dating from said date, and for said purpose.” It is further alleged “on information and belief that the said defendants Ames Realty Company, Mary C. Bradford, and Lucy Y. S. Ames are or claim to be the owners of and entitled to the right to the use of about one hundred and sixty-seven inches of the waters of said Prickly Pear creek in said county of Lewis and Clarke, dating from about the 6th day of April, 1866, for irrigation purposes in said county, and that by reason thereof, of the said 350 inches of water hereby sought to be taken, they are or claim to l e the the owners of and entitled to the right to the use of about one and one-half inches of the said waters of Prickly Pear creek comprising the waters of said McClellan creek, dating from said date, and for said purpose.” It is further alleged in the complaint “that each and every and all of the said water rights of the above-named defendants hereinbe-fore set forth are more particularly designated and described by the respective ditches of said defendants carrying and conveying said waters from that portion of said Prickly Pear creek in said Lewis and Clarke county, hereinbefore described, to and upon their said ranches in. said county of Lewis and Clarke.”

      The- prayer of tbe complaint is for tlie relief usually sought in condemnation proceedings.

      21 r. Edward Horsley, Messrs. Toole cO Bach, and Mr. B. Lee Word, for Appellant. •
    Tliis is a condemnation proceeding, and therefore Section 2216 of the Code of Civil Procedure must necessarily be the basis for determining the venue of such actions. Respondents’ lands, its ditches, and the portion of Prickly Pear creek from which its water rights are taken, are all situated in one and the same county, namely, Lewis and Clarke county. In, view of these facts wo contend that, applying the principles heretofore announced by this court, and by all other authorities, said water rights and the interests therein sought to be condemned, which constitute the property sought to be taken by the city, are situated in the county of Lewis and Clarke. (Smith v. Deniff, 23 Mont. 65, 60 Pac. 398; Tucker v. Jones, 8 Mont. 225, 19 Pac. 571; Sweetland v. Olson-, 11 Mont. 27, 27 Pac. 339; Long on Irrigation, Secs. 73, 78, and authorities cited.)
    Under Section 4800 (Laws of 1897, pages 210-212), the city clearly has the right to acquire its own water supply, either by purchase or condemnation, or both; it is thereby authorized and empowered. The question of payment does not figure in condemnation proceedings until there is to be an actual taking of the property condemned. Nowhere does the court pass upon the power or ability of the plaintiff to pay the damages, but, on the contrary, the judgment is conditioned upon the payment. In this way defendant obtains all the protection the statute gives him, and the court is not required to pass upon the matter in ’advance. It therefore has no> place in either complaint or summons. In so far as designating the quantity of water the plaintiff desires to take is concerned, it is specific and certain. It is running water, and can only be defined by the number of inches to be condemned. (Woodward et al. v. Superior Court of City and County of San Francisco et al., 40 Pac. 538.) Por aught that appears from the face of the complaint, there is sufficient cash money in the treasury over and above current operating expenses, wherewith to purchase outright the water supply. The debt to be incurred is for the water supply and system. As to whether a debt will be incurred, a debt within the three per cent, limit, or a debt beyond the three per cent, limit; and if the latter whether the limit of indebtedness has been extended, that is a matter of defense to be set forth in an answer as a bar and defense to defeat this proceeding, if it- does constitute such a bar or defense. “If the objection consists in the denial of some matter alleged in the petition, or in the existence1 of some extrinsic fact, which constitutes a bar to the proceeding, the better practice is to mahe such objection in the form of a plea or answer to- the petition.” (Lewis on Eminent Domain, Sec. 390, and numerous authorities cited.) “Though the statute must be complied with, a substantial compliance is sufficient.” (Lewis on Eminent Domain- (2d Ed.),. 348, at page S24, citing: Indianapolis, etc. By. Co. v. Christian, 93 Ind. 360; Shields v. McMahon, 101 Ind. 591; lleicle v. Voight, 110 Ind. 279; McCallister v. Shuey, 24 Iowa, 362; State v. Pitman, 38 Iowa, 252; Stevens v. Board of Supervisors, 41 Iowa, 34; Townsend v. Chicago £ Alton By. Co., 91 Ill. 545; Byron v. Blount, 97 Ill. 62; City of Beering v. County Commissioners, 87 Ma 151, 32 Atl. E. 797; Belle v. Hamilton, 130 Mo. 292, 32 S. W. Rap. 458.) “The substance not the form will be looked to.” (Lewis, supra.)

    “A complaint or petition for condemnation need contain only those allegations required by statute.” (Cahill v. Village of North Parle,-149 Ill. 156 (1893), 36 N. E. 606; Id., 149 Ill. 162, 36 N. E. 608; Chicago■, etc. Co\ v. City of Chicago. 150 Ill. 597, 37 N. E. 1029.) That following the phraseology of the statute is sufficient. {Flint, etc. By. Co., v. Detroit By. Co., 64 Mich. 350; 7 Ency. PI. & Pr., 531, citing Bochester B. Co. v. Robinson, 133 N. Y. 242; Inayle v. Missouri B. Go.. 63 Mo. 465; Seaman v. Washington, 172 Pa. St. 467; Byrnes v. Douglass (Nev. 1895), 42 Pac. 798.) “The general rule is that the mode of procedure pointed out by the statute must be pursued, to the exclusion of all other remedies, both ou the part of the condemning party and on that of the land owner.” (Ency. of PI. & Pr., Vol. 7, p. 470, par. 4, and authorities cited in foot notes.) What is required by the statute to be stated on the part of the condemning party in its complaint, and what is the remedy of the land owner by the statute in respect to his defense, i. e., what is required in respect to the matter of pleadings? Section 2217 of the Code of Civil Procedure defines what the complaint must contain. On the trial plaintiff is only required to establish the facts required to be alleged under the statute, all else is defense. (Monterey County v. Cushing, 83. Cal. 507, 23 Pac. 700; California 8. R. Co. v. 8. P. R. Co., 67 Cal. 63, 64, 7 Pac. 123.)
    The contention of defendant “that the fact that the city is authorized to incur such indebtedness must appear in the- complaint in the action,” as well as all other matters which are not required to be stated under1 Section 2217, cannot be maintained. Not being required to be stated in the complaint, they are matters of defense, when material at all. All that could be required under any condition is, that before the property is taken, just compensation should be made. In so far as any conditions are concerned, it is only when the statute imposes conditions upon the power to condemn that it is necessary to allege compliance with the conditions; and it must be noted that the statute must refer to the question of condemnation and not of taking. (See Yol. 7, Ency. of PI. & Pr., page 536, e.) Provision is made by law for payment, and that is all that is required. It is a condition precedent to the taking and not to the right to condemn. (Lewis on Em. Dom. (2d Ed.), Sec. 452.) “The condemnation of property for supplying a city or town with water is so manifestly a public use that it has seldom been questioned and never denied.” (Lewis on Eminent Domain (2d Ed.), Sec. 173, and long list of authorities there cited.) “The condemnation of a water supply system is within the unquestioned limits of the power of eminent domain.” (Long Island Water Go. v. City of Brooklyn, 166 TJ. S. 685, 41 L. Ed. 1165.)
    Tlie next question is: Is tlie use more public tlian that to wliicli it is now applied? We submit that this appears from tbe complaint, in that it is shown that the city of Helena, a municipal corporation, which is a city of the first class, having a population of more than ten thousand people, and of which the courts take judicial notice, is seeking to acquire a good, pure, wholesome and abundant supply of water for municipal and domestic purposes. That this use is superior to the use to- which it is now devoted by defendants is self-evident. From the facts alleged in the complaint, or proved to the court or judge under Section 2220, Code of Civil Procedure, the describing the nature of the use, the court or judge must decide whether it is -a more necessary public use than that to which .it is already devoted. It is a legal question. The facts being alleged, the court must decide therefrom. No allegation of a legal conclusion by the plaintiff would suffice or strengthen the complaint in the least. Tlie complaint amply sets forth these facts. It is therefore sufficient in these respects. It is asserted that by reason of the constitution providing that ■“water appropriated for sale, rental, distribution, or other beneficial use, shall be held to be a public use,” water which is already taken for a beneficial use cannot be taken for any other use. That provision of the constitution is not intended as a limitation upon the right to condemn, such classes of property as aro therein described, but by way of and for the purpose o^ defining and making such uses of private property public uses; such uses of private property, in the absence of said constitutional provisions, might or might not be held public, and therefore the constitutional framers, to avoid any doubt about the matter, .expressly recognized such uses as public. (10 Ehey. L. (2d Ed.), p. 1071.) Moreover, this provision should be construed in connection with Article XIII, Section 6, of the Constitution, authorizing cities to extend their limit of indebtedness to secure a water supply. In the case of St. Selena Water

      Company v. Forbes, 62 Cal. 182, construing article 14 of the California constitution, similar to Montana’s, it was held that “supplying a town with water is a public use within the exercise of eminent domain, and the waters of a oreelc may be condemned "therefor.” (See also McCrary v. Beadry, 67 Cal. 120; Cummings v. Peters, 56 Cal. 593.)
    The case of Fllinghouse v. Taylor (Mont.), 4S Pac. 757, construes Section 15 of Article III of our Constitution, and states that the use of water to irrigate a 160-acre field, owned by one person, is on principle a public use just as if there were thousands of acres owned by many different persons, “the difference being only in the extent of the benefit.” The court evidently recognized the fact that there is a difference in the extent of the benefits. IVe submit this same difference would obtain in so far as.it relates to which of given public uses is a more necessary one than another. The extent of benefits to be derived by the public would be on© of the elements entering into a determination of the question. A case, which, while not deciding the precise points involved herein, but shedding much light upon many features of this appeal, is that of Oregonian By. Co. v. Hill, 9 Ore. 376, and as to the character of a judgment in condemnation, see Oregon By. Co. v. Bidwell et- al., 3 Pac. E. 684.
    The amended complaint shows a sufficient description of the property. (Code of Civil Procedure, Sec. 2213, Subd. 4; St. Helena Water Co. v. Forbes, 62 Cal. 182; Eandolph on Em. Domain, Sec. 313; Lewis on Ein. Domain (2d Ed.), Sec. 350; Corey v. Swagger, 74 Ind. 211; Wright v. Wilson, 95 Ind. 408; Ingraham v. Camden Water Co., 82 Me. 335; In re Malone Water Worles Co., 15 N. T. Supp'. 649; 18 Cent. Digest, 1529; Village of Champlain v. McCrea, 165 N. T. 268; Ean-dolph on Em. Domain, page 300.)
    House Bill No; 203 of the Sixth Session Law’s, is complete and perfect upon the subject, and supplants the provisions relied upon by' defendants; this is intended to be a law special and applicable to all cities and to embrace the whole subject. (Gar-

      retí y. Bradley, 3 App. Cases, 952; People v. Jaehne, 103 N. Y. 182; State v. Jersey City, 54 N. J. L. 49; Ilusserc v. Com., 25 Pa. St. 126; 23 Ency. Law, p. 485; In re Wheeloclc, 3 N. Y. Supp. 890-892.)

      Mr. Massena Bullard, Messrs. Clayberg & Gunn, and Mr. J. Miller Smith, for Respondent, Ames Realty Company.
    Respondent asserts and claims tbe right to ai’gue before this court tlie question as to whether or not the amended complaint states a cause of action. If it does not state a canse of action, then the ruling of the court below on the demurrer is entirely immaterial. This court has decided frequently that this question can be raised in the supremo court for the first time. (Code of Civil Procedure (Mont.), Sec. '685; Territory v. Virginia Boad Co., 2 Mont. 96; Cillette v. Hibbard, 3 Mont. 413; Parteen v. Bond, 5 Mont. 1; Foster v. Wilson, 5 Mont. 53; Quirk v. Clark, Y Mont. 231; Carver v. Lynde, I Mont. 108; Whitesides. Lebcher, Y Mont. 4Y3.)
    1. The allegations of said amended complaint do not show that the city of Helena has authority to acquire the property sought to be taken. (Subd. Y5 of Section 4800 of the Political Code as amended- by the Act approved March 8, 189Y (Laws of 189Y, pp. 203-212) ; Constitution, Art. XIII, Sec. 6; Fletcher v. Peck, 6 Cranch, 8Y-145; Cooley’s Const. Limitations (5th Ed.), pp. 693-694, and notes; Constitution, Art. III. Sec. 14; Godfrey v. District Court, 46 N. W. 355; Sage v. City of Brooklyn, 89 N. Y. 189; Chapman v. Cates, 54 N. Y. 132; People v. Hayden, 6 Hill, 359; Code of Civil Procedure, Sec. 221Y; Subd. 64 of Sec. 4800 of the Political Code; Matter of City of Buffalo, Y8 N. Y. 362; In re Montgomery, 48 Eed. 896; Heck v. School Diet. No.. %, 14 N. W. 493; Lane v. Saginaw, 53 Mich. 442; United States v. Oregon By Co., 16 Eed. 524; Whitehead v. City of Denver, 56 Pac. 913; Cooley’s Const. Limitations (5th Ed.), Secs. 653-654; Clay v. Pennoyer Creek Improvement Co., 34 Mich. 204;
      State v. Clinton Water & Water supply Co., 46 Atl. 650; Cooley’s Const. Limitations (5th Ed.), Sec. 528.)
    2. Under the constitution and statutes property cannot be acquired, under the power of eminent domain, except for a public use. The use to which the water supply in question is to be devoted, according to the allegations of the amended complaint, is to supply the city and its inhabitants with water. The water cannot be made useful for this purpose without a water plant and system and without the right to conduct said water from its point of diversion to the city. It does not appear that the city has a water plant or system, but on the contrary it is expressly alleged that it has not. It is not authorized to acquire a plant or system except upon compliance with the conditions stated in Subd. 64 of Sec. 4800 of the Political Code, as amended, and with the provisions and conditions of House Pill No. 206. Until it is authorized to acquire a plant and system in connection with which it can use the water supply in question it cannot acquire such supply by the exercise of the right of eminent domain. {Wisconsin Water Co. v. Wians, 20 L. E. A/663.)
    3. There is no allegation in the amended complaint in any way tending to show either that it now owns and has acquired a right of way for conducting the -water sought to be, condemned to the city of Helena, or any allegations seeking to condemn such a-iglit of way. As above stated, the city is not in any position as shown by its amended complaint to put the waters sought, to be condemned to a public use. {IIougMon v. Huron Copper Mining Co., 57 Mich. 547.)
    4. It appears from the amended complaint that the water sought to be taken has already been appropriated and is now being used for the purpose of irrigation and otherwise. Under Section 15, Article III, Constitution of State of Montana, the water desired to be condemned in this suit is now devoted to a public use. Ordinarily, where property has been devoted to a public use it may be taken for a more necessary public use. (Secs. 2212, 2214, of the Code of Civil Procedure.) Where it is sought to lake property already appropriated to a pub ic use it is necessary, under the provisions of this statute, to allege and prove that the use for which said property is sought to be taken is a more necessary public use. (City of Hele ict, v. Ilarvey, 6 Mont. 114.) We submit, however, that by virtre of the provision of the constitution above quoted water whiah is being used for any beneficial use cannot be taken for any other use, whether the other use is a more necessary public use or not. The constitution does not give any particular use a preference over any other use, but says that water appropriated for sale, rental, distribution, or other beneficial use shall be held to be a public use. In the case of Ellmglwv.se v. Taylor, 48 Pac. 157, there is a clear’ judicial declaration that the use of water by one individual is just as much a public use as the use of water by many. As stated by the court in this case, the only distinction between the use of water by one and the use by many is in the extent of the benefits and not in the character of the use. But, again. It is an established rule of law that where property has been already appropriated to a public use it cannot be taken for a more necessary public use wholly inconsistent with !he first use, unless there is a clear and explicit statutory authorization so to do. (Matter of CUy of Buffalo, 68 N. Y. 167-175; Sharon By. Co., 9 Am. St. Eep. 133; L. & IN. B. Co., v. ’’ Whitley Co. Court, 44 Am. St. Eep. 220; Cincinnati, etc. B. Co. v. Anderson, 47 Am. St. Eep. 285; Matter of Bochester Water Commfrs, 66 N. Y. 413; Fort Wayne v. By. Go., 32 Am. St. Eep-. 277; L. M. & C. B. Co. v. Dayton, 23 Oh. St. 510; L. E. etc. B. Co. v. Commfrs, 57 Fed. 945; B. A. & P. By. Co. v. M. U. By. Co., 16 Mont, 543.) The general -grant of p-ower to take property for a public use, and a provision authorizing the taking of property already devoted to a public use, for a more necessary public use, are insufficient to authorize the taking of property appropriated to a public use for another public use, which is inconsistent with the first use, and where the two uses stand together. The use of the water sought to be condemned by the city is utterly inconsistent with ;>nd will absolutely destroy the use of water for irrigation or other purposes.
    5. The amended complaint does not contain sufficient description of the property of these respondents sought to be condemned. (Code of Civil procedure, Sec. 2217, Subd. 5; Code of Civil Procedure, Secs. 2221, 2228; St. Helena, Water Go. v. Forbes, 62 Cal. 182; Tucker v. Jones, 8 Mont. 225; Stoeei? land v. Olson, 11 Mont. 27; Beatty v. Murray Placer Mining (Jo., 15 Mont- 814; see also Wiggins v. Muscupiabe L. & W. Co., 54 Am. St. Rep. 387; Estee’s PL, Sec. 5452 e; Aliso Water Co., v. Baker, 95 Cal. 268; Los Angeles v. Pomeroy, 124 Cal. 597-613; Matter of 11. B. Co., 70 N. Y. 191.)
    6. Mater cannot be diverted from a private stream under authority granted by the legislature in the exercise of the right of eminent domain for the purpose of supplying a town or village with water, without making compensation to the riparian proprietors whose rights are thereby injuriously affected. {IIamor v. Bar Harbor Water Co., 3 Atl. 40; Gould on Maters, Sec. 245.) The doctrine of riparian rights as established by the common law prevails in Montana. {Cruse v. McCauley, 96 Fed. 369; Benton v. Johncox, 61 Am. St. Rep. 913.)
    7. The amended complaint is defective for the reason that it is not alleged therein that the use for which the property is sought to be taken is a. more necessary public use than that to which it is now applied. Section 2217 of the Code of Civil Procedure provides: “The complaint must contain * * * a statement of the right of* the plaintiff.” Section 2214 provides: “Before property can be taken it must appear: (1) That the use to which it is to be applied is a use authorized by law. (2) That the taking is necessary to- such use. (8) If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use.” {City of Helena, v. Harvey, 6 Mont. 116; M. C. By. Go. v. II. & B. M. B. Cok, 6 Mont. 416.) This court will not take judicial notice of the fact that one use is a more necessary public use than another. (See Section 1350 of the Code of Civil Procedure.) The question of whether or not a certain use is a more necessary public use than another, is one depending upon conditions and circumstances and not alone upon the nature of the use. (B. A. & P. By. Go. v. M. U. By. Go., 16 Mont. 504.) The question of whether or not a particular use is a joublic use or a more necessary public use than the use for some other purpose, is a judicial question and must ultimately be decided by the court in every case. '(Lewis on Eminent Domain, 2d Ed., p. 408.)
    The subject of this proceeding is alleged to be three hundred and fifty inches of water and water rights. If said three, hundred and fifty inches of water and water rights are property situated out of the county of Lewis and Clarke, then the district court of Lewis and Clarke county has no jurisdiction thereof. (Code of Civil Procedure, Sec. 2216.)
    I. As to said water: Said three hundred and fifty inches •of water is that much of the water of McClellan creek. Hence, we first ask: Is said water property by the law of this state ? The amended complaint recognizes said water as such property in seeking to condemn it; for only “property” can be so taken. (Political Code, Sec. 63; Code of Civil Procedure, Sec. 2210.) The water is a part of the realty and has an owner or owners. {Howell v. Johnson, 89 Pac. 55-6, 8, 9; 3 Kent’s Com., 401; 2 Blackstone’s Com., 18; St. Helena. Waiter Go. v. Forbes, 62 Cal. 182, cited in note to Section 1078, Civil Code; Parks G. <f; M. Go. v. Hoyt, 57 Cal. 44; Political Code, Secs. 60-61; Civil Code, Secs. 1090-1091, 1880; Smith v. Henniff, 60 Pac. 398.) Prom the description of said McClellan creek in the amended complaint the court will notice that it is not in Lewis and Clarke county. (Jones Law of Ev., Secs 127-128; Code of Civil Procedure, Sec. 3150, Subd. 8.) Hence, said property being water of said creek, it cannot be in the county of Lewis and Clarke. Therefore, as to said three hundred and fifty inches of water, the district court of Lewis and Clarke county has no jurisdiction.

      II., As to said water rights: The only rights which the respondents can have in this three hundred and fifty inches of water in McClellan creek is a right to have it flow to its month, which is about a mile south of Lewis and Clarke county (said mouth being the point of diversion made by nature and adopted by respondents), and thence into Prickly Pear creek as it now does. (Parks C. & M. Go. v. Hoyt, 57 Cal. 44; Knowles, J., in Howell v. Johnson, 89 Ped. E. 556, 559.) And to use said water for a beneficial purpose. (Civil Code, Sec. 1881.) The appellant seeks by legal means to invade this right in Jefferson county, and therefore in that county is the place to prosecute this proceeding to condemn said water rights as well as said water. (Code of Civil Procedure, Sec. 2216.) If the appellant should divert said water from McClellan creek without condemning it, the respondents would have to proceed in the county where the creek is, in order to enjoin such diversion, even though in another state. (Howell v. Johnson, 89 Ped. 556.) To abate or enjoin the pollution in one county of a stream flowing into and affecting a village in another the action must be brought in the county where the nuisance was committed. (Horne v. Buffalo, 49 Hun. 76.) The case of Smith v. Denniff, 23 Mont. 65, cited by the counsel for appellant, was reversed upon rehearing in the same case, 60 Pac. Pep. 398, wherein the court decides that the right to take water from or over the land of another 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. (Smith v. Denniff (Mont.), 60 Pac. 398, 399, right hand column, citing Civil Code, See. 1882 and Sec. 1251, Subd. 6.) But even if these water rights whether riparian or appropriated rights be appurtenant to lands in Lewis and Clarke county, if they extend into and attach to water in another county and be sought there by the appellant for a public use, there is the place to condemn them just as there would be the place to condemn so much of an irrigating ditch or canal as was wanted in that county though it was used to irrigate and was appurtenant to a ranch in Lewis and Clarke county. Land in Jefferson county might be appurtenant to land in Lewis and Clarke county for purposes of pasture, flooding, or a way for teams or water; but if such servient land wore desired for a public use it and all such rights of way, flooding, and pasture would be condemned in Jefferson county. The respondents wlm have made appropriations of the waters of Prickly Pear creek below the mouth of McClellan creek in Lewis and Clarke county are interested as owners or tenants in common in the waters of McClellan creek, and the respondents’ rights to the three hundred and fifty inches of water of McClellan, creek, sought to be condemned by the appellant, have their locus on McClellan creek. In other words, these rights are property on McClellan creek, and no part of ¡hese rights to or property in said three hundred and fifty inches of Avater Avhile in McClellan creek can be in LeAvis and Clarke county. (Lyile Greek Water Go. v. Per-dew, 4 Pae. 426, 429, near end of page; Sania Pauta Water Works v. Peralta, 45 Pac. 168, 169, near top of first column.)
    The amended complaint sIioavs clearly that appellant is not seeking to condemn Avater or water1 rights' of Prickly Pear creek, but simply and exclusively the Avaters of McClellan creek. If appellant’s theory Avere correct, “once McClellan creek Avater, always McClellan creek water,” it would be necessary for it to bring action in every county along the Missouri' rivei”, and Mississippi river to the Gulf of Mexico, against nearly all the inhabitants along those streams, before it could get an unclouded title to McClellan creek-Avatexr, as each person Avho uses such Avaters is entitled to his day in court. This shows the absurdity of appellant’s position. Therefore, as to said Avater rights the district court of LeAvis and Clarke county has no jurisdiction.
   MR JUSTICE MILBURN,

after stating the case, delivered the opinion of rhe court.

Numerous points liaAm been argued and submitted, the attack being on tlie sufficiency of tlie complaint. Tliey are as follows:

1. Has tlie city tlie right to acquire by condemnation proceedings water rights for the purpose of establishing a water supply system for the purposes set out in the complaint? We think it has. House Bill 203 of 1897, amending Section 4800 of the Political Code of 1895, is entitled “Mu. Act toi amend Section 4800 of the Political Code relative to legislative powers of cities and to enable cities and towns to acquire by purchase, construction or condemnation proceedings water plants, water supplies, franchises, public buildings and sewers.”

“Section 4800. The city or town council has power: * * * (64) * * * Por the purpose of providing the city or town with an adequate water supply for municipal and domestic purposes, the city or town council shall. procure and appropriate water rights and title to the same and the necessary real and personal property to make said rights and supply available, by purchase, appropriation, location, condemnation or otherwise.” (Laws of 1897, p. 203.)

The above provision, which has been in force since March 8, 1897, plainly gives the city the power sought to be exercised in this suit. The Act referred to is the last utterance of the will of the legislature on the subject, and controls.

2. Has the district court of Lewis and Clarke county jurisdiction to try and determine this suit under the allegations of the complaint? We think it has.

The plaintiff seeks to condemn pro Santo the respective water rights of the defendants. Although the language of the complaint is very far from explicit, there seems to be an attempt to allege that each of the defendants owns a water right appurtenant to lands in Lewis and Clarke county, — a right to the use of water running in Prickly Pear* .creek. It also appears that McClellan creek, which lies entirely in Jefferson county, is a tributary of Prickly Pear creek, and that plaintiff desires to divert from said McClellan creek 350 inches of water.

Each person owning a valid water right in Lewis and Clarke county is the owner of a certain incorporeal hereditament, to-wit, the right to have the water flow in Prickly Pear creek from the head thereof, and from the head of each tributary thereof above his place of diversion, in sufficient quantity to the ‘head of his ditch or place of diversion, and to have it of such quality as will meet his needs as protected by his water right; tliat is, he owns an easement in the stream and its tributaries above his point of diversion. lie also' has the right to require appropriatoi's subordinate to him and his water right,, who have appropriated and who1 take water from the stream or its tributaries below his point of diversion, to forbear using such water when such use will deprive appropriators prior to him, downstream, of the use of water to1 which they are entitled ; .otherwise he might be required to forbear- the use of water to which he is entitled in order to- supply the appropriator first in order of priority. This interest in the stream and its tributaries is an easement, and is part of and incident to the water right, to-wit, the property sought to bo condemned. Therefore we see that the property sought to- be condemned extends over part of the two counties mentioned.

Section 610 of the Code of Civil Procedure provides: “Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, as provided in this Code: (1) For the recovery of real property, or of an estate or an interest therein, or for the determination in any form of such right or interest, and for injuries to real property. ■* *

Section 2216 of the same Code, referring to proceedings in eminent domain, is as follows:- “Sec. 2216. All proceedings under this Title must be brought in the district court of the county in which the property is situated. They must be commenced by filing a complaint and issuing a summons thereon.”’ This section is identical with Section 1243 of the Code of Civil Procedure of California. It is well to note that Section 2216 provides that all proceedings in eminent domain must be brought in the district court, etc., whereas Section 610 requires that actions relating to real estate as aforesaid must be tried in the county in which tire subject of the action, or some part thereof, is situated, etc. There has been some controversy as to the effect of the words “be brought,” — as to whether the actioar, having been brought in the county where Hie property sought to be condemned is situated, may be tried and determined in such county. We do not think there is any merit in the controversy.

.In the case of California S. R. Co. v. Southern Pac. R. Co., 65 Cal. 394, 4 Pac. 344, the court; in a condemnation proceeding, held that a proceeding in eminent domain, according to Section 1243 of the Code of Civil Procedure, supra, must be brought in the superior court of the county in which the property is situated, and in the opinion in the case uses this language: “The conclusion here reached is sustained, in our judgment, l>y Section 1243 of the Code of Civil Procedure, requiring all proceedings under the title in regard to eminent domain to be brought in the superior court of the county in which the property is situated. This language means something more than that the proceeding must be commenced in such superior court. There are strong reasons why such proceeding should be had in the county where the land sought to be condemned is situated. The compensation for the land sought to be taken is to be determined upon testimony, and the witnesses most competent to speak upon this subject will usually be found in the county referred to.”

Iix support of respondent’s contention that the action should not be brought in Lewis and Clarke county, but in Jefferson county, counsel argues that an action for nuisance committed by persons polluting the stream in Jefferson county would necessarily have to be brought in Jefferson county. .We do not think that reason or the authorities-will bear out this contention. In case a nuisance be erected in one county to- the injury of lands in another, then the action may be brought in either county. An action for a nuisance created by the erection of a dam in a navigable river is local, and cannot be sustained elsewhere than in ihe county where the dam is erected, unless in the case where the dam erected in one county injures the land of an individual in another, when the action may be maintained in either county. (Oliphant v. Smith, 3 Pen. & W. 180.) In the case last above referred to, as in the case at bar, a. view is necessary, and the court remarks: ‘‘And, in general, wherever a view may be necessary, there the action must be brought in the couniy where the injury arises;” the court adding that the exception to the rule is the erection of a nuisance in one county to the injury of lands in another, in which case the action may be brought in either county.

Besides, each one of the defendants having a water right— that- is, the right to the use of water diverted from Prickly Pear creek — has an interest in all the water of Prickly Pear creek and its tributaries above his point of diversion. Hence it follows that the appurtenance to his land in. Lewis and Clarke county extends into Jefferson county, and is properly located in both counties; in other words> it may be called a “blanket right” spread over two counties. Following the reasoning of the courts which have declared that in case of injury in one county resulting from a tortious act in another county the action may be brought in either county,'and considering Section 2216, supra, which, in our opinion, requires the action to be brought and ivied in the county where the property is situated, subject, perhaps, to removal for sufficient causo, and the locus of the property, as we have herein described it, as being in both counties, we must and do conclude that the action was properly brought to be tried in Lewis and Clarke county.

3. Is it necessary to allege in the complaint that the water supply can be obtained without incurring an indebtedness, or that the limit of indebtedness has been extended in the manner prescribed by Section 6 of Article XIII of our Constitution; or is it essential to allege that the question of procuring a water supply has been submitted to, and voted upon by, the taxpayers, and that a majority of votes has been cast in favor of the proposition ? We think that each of these questions must be answered in the negative.

If the city has not put itself in a position to take the property sought, it may not take the same; but power to initiate proceedings to condemn and power to take — that is, to pay the, damages which may be assessed, and to possess itself of the-necessary property after a decree of condemnation has been entered thereon — are very different matters. It is not to bo presumed that a city is without- power to do what it undertakes to do in a case of this kind; nor is it to be presumed that it has failed to do what is necessary for it to do in order to succeed in its undertaking. If, because of failure to do any of the things suggested in the questions above stated and now under consideration, it has not the authority to maintain the action, to make this manifest it is only necessary that such failure be shown by answer, if it be material in opposition to the condemnation of the property. The law giving it the power to institute condemnation proceedings does not require it to allege in its complaint that it has the money in hand to pay for the property after It- has been condemned, or to aver that the limit of indebtedness has been extended, or to declare that the election aforesaid has been held with the result suggested.

4. Is it fatal to omit from the complaint an allegation that the city has a right of way from the creek to the city, or that it is able to get. one ? It does not- appear to be necessary so to allege. It is not- any concern of the owners of the property whether the water comes to Helena or not. It would hardly be necessary to allege and prove, that the city has engaged the services of a competent, civil engineer, and put him under bonds to lay out a feasible route, and to direct and superintend the laying of the pipes so well and faithfully that the water will actually run to Helena, before the owners of the property sought may be required to part with it for a public use,

"What rights and remedies a city taxpayer, as such, may have in case the plan is foolish, or impossible of execution, is another question; but this we do not now consider.

5. Is the description of the several properties to be condemned sufficient? The law requires that “a description” of tlie property be set out in the complaint. The city seeks to condemn numerous water rights, each pro- Lardo. What is a water right? In Smith v. Denniff, 24 Mont. 21, 60 Pac. 398, 81 Am. St. Rep. 408, it is defined as the legal right to use water. This may be modified to mean, in this case, the right to use water appropriated according to law .from the streams of the state for any useful or beneficial purpose. Prom what description there is in the complaint, we learn that all of the water rights referred to- are rights to- the “use of * * * waters * * * for irrigation purposes.” Condemnation proceedings are statutory, and a strict compliance with the requirements of rhe statute is necessary. It- has been held that “extreme accuracy is required in the description of the property sought to be acquired, and there must be no uncertainty in such description or in the degree of the interest sought to be acquired.” (Metropolitan Elevated Railway Co. v. Dominick, 55 Hun. 198, 8 N. Y. Supp. 151; In re New York Cent. & H. R. R. Co., 70 N. Y. 191; Aliso Water Co. v. Baker, 95 Cal. 268, 30 Pac. 537; 3 Estee, PlI. 5452; Long, Irr., at page 262.) We think that it is not necessary to go to extremes in describing the'property, but we agree with the last-named authorities in what is said as to the necessity of so- describing the property that there will be no- uncertainty in the decree, and that the commissioners may know what damages to appraise.

The city is asking the court for leave. to: damage the lands of respondents. This is apparent from the complaint, for there is no stronger inference to- be drawn therefrom than that the water rights are- held for the useful and beneficial purpose of irrigation. There cannot be irrigation without lands to irrigate. There is no description whatever of the lands to be damaged, except the reference to “the use of * * * the waters * * * for irrigating purposes in said county,” thereby giving the court an idea that at least part of the land to which each water right pertains is somewhere in Lewis and Clarke county. Certainly, the value of the- water right to- be taken, in whole ot in part, is dependent upon, the lcind and extent of the lands irrigated, .as well as upon such other uses as the owner of such right may hereafter be able to put it to, as he is permitted to do under Section 1882 of the Civil Code.

It may not be successfully argued that, as in the present case, — in which there are so many scores of owners, — it would be a tremendous labor, involving great expense, to describe fully each water right with the facts necessary to let the commissioners know what property they shall consider in assessing damages, and to inform the court what to include in its decree; 'so that, at least when the decree is recorded in the office of the recorder of deeds, it may give notice to the world what sort of interest and what title the respective owners have in.and to their real estate after the condemnation of some part or interest therein has been concluded. The argument of convenience in drawing complaints cannot appeal to us. The case is the same as to that as if the desire of the city were to damage a ten-acre farm, easily described, by condemning and taking a water right appurtenant thereto. How full the description need be is not for us to point out. It should, however, we may venture to say, include a description of the lands, their location, the point of diversion of the water-, and the number and size of the ditches upon the said lands or appurtenant thereto.

6. Another question presented is this: Can water already appropriated to a public use be condemned in eminent domain proceedings for any other use, whether the other use is a more necessary public use or not? Section 2214 of the Code of Civil Procedure provides that: “Before property can be taken it must appear: * * * (3) If already appropriated to some public use, that the public use to which it is to- be applied is a more necessary public use.” It must so appear in the complaint. The use of water to irrigate a farm under the water-right law is a public use. (Section 15, Art. Ill, Constitution; Ellinghouse v. Taylor, 19 Mont. 462, 48 Pac. 757.) The law permits the condemnation of a water right by a city, as we have seen.' Therefore the position taken by respondents, to-wit, that water which is being used for any beneficial use cannot be taken for any other use, whether the other use is a more necessary public use or not, is not tenable. Whether the use of water by the city is necessary — that is, whether the city needs a water supply — is for the city, and for the city alone, through its council, to say. Whether it is necessary to condemn the water right in order to supply the city is to be alleged, and is a judicial question to be determined by the court. That it is a more necessary use than that of the ranchman is to be alleged, and by the court judicially determined. If it wore not, then not only could a city condemn and take the water from a ranchman owning and irrigating 1G0 acres of land, but could, on its own allegation of superior necessity, condemn and take the water from another and a neighboring city, and leave it dry. And here again we may, in passing, say that the necessity for a complete description of the property to be taken is necessary, to the end that the court may see that the proposed use is superior in point of necessity to- the present public use.

The right to take depends largely upon the superior necessity. In 1886 this court, in City of Helena v. Harvey, 6 Mont. 114, 9 Pac. 903, held that the right of the city to have the property condemned must be stated in the complaint. (Revised Statutes of 1879, Code of Civil Procedure, Sec. 586.) The right will depend, among other things, upon the answer to the question: Is the intended use superior in point of necessity to the present use? Enough must be alleged to show to the court that it is. The mere statement that it is a use superior in necessity would not be sufficient without the facts as to the present use coupled with those appertaining to the intended use.'

Resides the above matters, which are called to our attention in the briefs, wo think it not inappropriate to suggest for the consideration of counsel the following matters, which occur to us:

It seems that, the city is attempting to secure a Water right by acquiring a small fractional interest in each of a very large number of water rights belonging to numerous persons, respectively, these water rights being of different dates of appropriation from 1866 up to and including 1890, involving different priorities. If ¡.lie city prevail, what will it have if it get the decree prayed for? It can only acquire from each owner what he owns. If A. be subordinate to B. in the use of water, and B. be subordinate to C., and so on, how can the city lawfully use any of the water formerly used by A. until B. is through with the use of what is left to him after the condemnation proceedings are concluded ? If there be water enough for all, there would be no trouble; but, if the ranking appropriators use each to the full his prior right, the small fractions owned by the city would be of little value. May it not be assumed that water is scarce in the creek, or this proceeding would not. be in court? We pass no opnnion on this matter, either as-affecting1 the possibility of constructing a complaint which will be good for substance, or as affecting any other phase of this case.

AVe suggest further, as worthy*of consideration, this point: In the absence of any allegation as to the volume of water in McClellan creek from which the city seems to desire to divert water, can a complaint be good which does not state facts sufficient to show the court that it is impossible for the city to appropriate an ample supply, in manner and form as any other p^erson may under the previsions of the Civil Code, Title VIII, Part PV, Div. II, Section 1880, et seq., and amendments? There are no such facts set out in the pleading. If there be water in the stream sufficient for all, and to spare, may the city condemn the rights of others? We pass no1 opinion as to this question.

AVe suggest, also, that counsel examine the law upon the question, which is suggested to us by reading Section 97 of Long on Irrigation, and the cases cited, in reference to the measurement of water, and as to whether a complaint or decree in such a case as the one before us would be good if it employ only tlie word “inches” in relation to the measurement of water. We do not express any opinion as to this matter.

Judgment affirmed.

Affirmed.

Mr. Chimb Justice Beastly:

I concur.

]\Ik. Justice Pigott:

While I am not satisfied that the description of the property sought to be condemned is fatally defective, I am inclined to think that the better reasons support the conclusion announced in paragraph 5 of the opinion. I concur.

[Por opinion on motion for rfehearing see 27 Montana Reports, p. —.]


source: Caselaw Access Project

author: ME. CHIEF JUSTICE BEANTLY

license: Public Domain

text:
    T. C. POWER & BRO., et al., Respondents, v. STOCKING et al., Appellants.
    (No. 1,393.)
    (Submitted January 20, 1902.
    Decided May 5, 1902.)

      Appeal — Rules of the Supreme Qourt — Briefs —- Revieiv of Evidence — Nonsuit—Failure’ to Stand on Motion — Aider of Plaintiff’s Gase.

    1. A failure on the part of appellants to conform their brief to the requirements of Subdivision1 3 of Rule X of the Supreme Court, precludes a hearing 'of the appeal on the merits.
    2. Where the record on appeal does not show that it includes all the evidence, the question of the sufficiency, of the evidence will not be considered.
    3. Where a defendant fails to stand on an adverse ruling on a motion for nonsuit, and there be introduced thereafter other evidence which supplies the defects in plaintiffs case, such evidence inures to plaintiff’s benefit, and cures the defect, so that it cannot be urged as a ground for new trial.

      Appeal from District Court, Ghoteau CountyJ Dudley Du Bose, Judge.

      Suit to set' aside a fraudulent conveyance by T. C. Power & Bro. and another against Winfield S. Stocking and others. From a judgment against certain defendants, they appeal.
    Affirmed.

      Mr. Wm. Cr. Downing, and Mr. Samuel Stephenson, for Appellants.
    . Messrs. Walsh £ Newman, and Mr. G. N. Pray, for Ee-spondenis.

   ME. CHIEF JUSTICE BEANTLY

delivered the opinion of the court.

This action was brought by plaintiffs to obtain a judgment setting aside conveyances of certain lands situate in Choteau county by defendant W. S. Stocking to his co-defendants Margaret and Katherine L. Stocking, on the ground that the conveyances were made without consideration, and for the purpose of defrauding the creditors of W. S. Stocking. The plaintiffs allege that they are creditors of W. S. Stocking, who is insolvent; that lie has no other property out of which they can obtain satisfaction of their claims; and that they have secured liens upon the ^ands conveyed by Stocking by means of attachments levied thereon and judgments against him.

The district court rendered a judgment setting aside the conveyance to Margaret Stocking, and directing that the lands conveyed, except certain residence property at Fort Benton occupied by the defendants W. S. and Margaret Stocking as their homestead, be subjected to the satisfaction of plaintiffs’ judgments. The conveyance to Katherine B. Stocking was found to have been made in good faith and for a valuable consideration. The action was dismissed as to her. The other defendants moved for a new trial, which was denied. They thereupon appealed to this court from the judgment and the order denying a new trial. On motion, the appeal from the order denying a new trial was dismissed. The case is now before us on appeal from the judgment only.

At the hearing.in this court, counsel for appellants confined their argument to the sole question whether the district court erred in refusing to direct a. nonsuit; expressly waiving all other assignments of error made in the brief. Upon the record before us, we are precluded from considering the case upon the merits, for two reasons:

1. The brief filed by appellants wholly fails to comply with the requirements of Subdivision 3 of Hule X of this court, in that it does not contain “a concise abstract or statement of the case, presenting succinctly the questions in volved, and the manner in which they are raised,” with references “to the page numbers in the transcript in such manner that pleadings, evidence, orders and judgment may be easily found.” This court has frequently held that it will not undertake the examination of a case when ihe brief fails to furnish the aid which the rule requires that it shall. (McCleary v. Crowley, 22 Mont. 245, 56 Pac. 227; Smith v. Denniff, 23 Mont. 65, 57 Pac. 557, 50 L. R. A. 737; Rehberg v. Greiser, 24 Mont. 487, 62 Pac. 820, 63 Pac. 41; Kranich v. Helena Consolidated Water Co., 26 Mont. 379, 68 Pac. 408.) The statement in this case furnishes no references to the pages of the transcript, so that the pleadings, evidence, orders, and judgment may be easily found. Even the ruling upon the motion for nonsuit, which appellants insist Avas prejudicially erroneous, is not mentioned; nor is reference made to' the page of the transcript where it, or any of the evidence’, may be found. We take occasion again to emphasize the necessity of at least a substantial compliance with the rules, as a prerequisite to a hearing by this court upon the merits of the questions discussed in, that portion of the brief devoted †» the argument. Upon the authority of the cases cited, the judgment must be affirmed.

2. Upon the overruling of their motion for a nonsuit, the-defendants introduced their evidence in rebuttal. Plaintiffs also introduced ether evidence. The cause was then submitted to the court for consideration and decision. It does not appear by fair inference, either from the recitals in the statement on motion for a new trial, or from tlie certificate of tlie trial judge settling it, or from botli, tliat tlie statement contains all tlie evidence lieard at tlie trial. In State v. Shepphard, 23 Mont. 323, 58 Pac. 868, tbis court said: “It is well established that, where the error relied on is tlie insufficiency of the evidence to justify the verdict, the entire evidence1, or its substance, which is material, should be before tlie appellate court, to enable it to say whether or not the order denying a new trial was erroneously made. (People v. Leong Sing, 77 Cal. 117, 19 Pac. 254.) This being so, it is the duty of an appellant to see to it that his bill of exceptions contains not only all the material evidence, or the substance thereof, but that that fact is properly certified to by the district judge who certifies to the bill, or that the- bill of exceptions itself shows that the evidence therein contained and set forth is all the evidence had on the trial material ;o the illustration of the alleged insufficiency thereof to justify the verdict. Where the judge’s certificate is relied on, we think it sufficient if it rises any language by which it deárly appears, that the bill contains all the evidence, or so much thereof as is necessary to demonstrate the point relied on, and there need be no adherence’ to any precise words in the certificate of that fact. (People v. Henckler, 137 Ill. 580, 27 N. E. 602; Brock v. State, 85 Ind. 397; Grisell v. Noel Bros.' Flour-Feed Co., 9 Ind. App. 251, 36 N. E. 452; Jones v. Layman, 123 Ind. 569, 24 N. E. 363.) Where the bill of exceptions itself is relied on to show the insufficiency of the evidence, it should either set forth in express language that all the evidence, or the substance thereof, or so much thereof as is necessary to illustrate the point relied on, is all incorporated in the bill, or it should contain statements equivalent to such expressions, or it should show a whole, connected narrative, so constructed that it clearly appears that all the material evidence, or the substance thereof, is incorporated in the bill.”' These remarks, though made with reference to1 insufficiency of the evidence to sustain a verdict, are equally pertinent to the situation presented in this case. In the absence of some-tiling in the record, to show that it contains all the evidence, it is impossible for this court to determine whether the alleged insufficiency of plaintiffs’ evidence in chief was not fully cured, either by the defendants’ evidence, or by other evidence introduced by plaintiffs. (See, also, Currie v. Montana Central Railway Co., 24 Mont. 123, 60 Pac. 989.)

Though the ruling on the motion may have been erroneous when made, yet, if the defendant does not stand upon it, and there be submitted thereafter other evidence which cures the defect in plaintiff’s case, the defendant cannot be heard toi complain. Whether such evidence is furnished by plaintiff or defendant, it will be considered in support of’plaintiff’s case, and a new trial will not be granted. (Alderson v. Marshall, 7 Mont. 296, 16 Pac. 576; Gould v. Barnard, 14 Mont. 335, 36 Pac. 317.)

In some jurisdictions it is held that if the defendant does not stand on his motion, and other evidence is therafter heard, he waives his right to rely upon an erroneous ruling upon the motion, even though the evidence subsequently heard does not in any way aid plaintiff’s case. In such case the review must be had through an assignment of insufficiency of the evidence as a whole by statement on motion for new trial or bill of exceptions. Whether this is the correct rule, we do not decide, as it does not arise here. In any event, it should affirmatively appear from the statement or bill that it contains all the evidence heard by the trial court material to illustrate the alleged insufficiency thereof, as pointed out by the motion. Otln erwiso it will not appear ■ affirmatively that the ruling was erroneous.

Let the judgment be affirmed.

Affirmed.


author: Mil. CHIEF JUSTICE BIIANTLY

text:
    STATE ex rel. GEYMAN et al., Relators, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,815.)
    (Submitted April 28, 1902.
    Decided May 5, 1902.)

      Mines and Mining — Actions Between Adjacent Owners — ■ Trespass — Inspection and Survey of Property — Order— Grounds.

    1. Code of Civil Procedure, Sec. 1314, authorizes on good cause shown an order for the inspection of a mining claim involved in litigation, even though entry must be made through lands of the adverse party. Plaintiff and defendant claimed adjoining premises under placer patents, and in an action for trespass plaintiff moved for an inspection. It appeared that 'plaintiff had no openings in his property, and therefore no means of ascertaining the conditions beneath the surface; that defendants were mining on their own premises, and through drifts, some of them in the direction of plaintiff’s premises, and that blasting could be heard, and the concussion felt, by persons residing on the premises in the same relative position of plaintiff’s premises; that defendants had been removing large amounts of ore through their shaft for months, and had refused to admit any one thereto, or even to the inclosure about it; that they denied that plaintiffs had any right to the minerals beneath their surface. The surface had been platted as an addition to a city, the respective parties owning certain of the lots and blocks, and claiming the mineral rights to the middle line of the adjacent streets and alleys, so that prima facie they had no extralateral rights. Ilelclj not an abuse of discretion to grant the order, subject to the limitation that the inspection should extend to no other workings than those made in the direction of plaintiff’s property.
    2. The evidence upon which an order of inspection and survey is made, under Section 1314 of the Code of Civil Procedure, need go no further than would be necessary to support a search warrant in a given case.
    • AeplicatioN by Charles L. Geyman and others for a writ under the supervisory power of the supreme court to vacate an order for the inspection of a litigated mining claim, made in an action by Joseph T. Carroll and others against the Geyman Mining Company and others.
    Writ denied.

      Messrs. McBride & McBride, for Eelators.

      Messrs. Forbis & Mattison, Messrs. McIIatton & Cotter, and Mr. John Lindsay, for Eespondent.
   Mil. CHIEF JUSTICE BIIANTLY

delivered the opinion of the court.

Application for a writ under the supervisory power of this court, requiring the district court of Silver Bow county and E. W. Ilarney, its judge, to vacate an order of inspection and survey made in an action pending in that court, wherein Joseph T. Carroll and others are plaintiffs and the Geyman Mining Company, a corporation, and others, ■ are defendants. The plaintiffs in the action seek to recover of the defendants damages for trespasses, which, it is alleged, they are and have been committing since July 1, 1901, by entering beneath the surface of certain mining ■ property belonging to plaintiffs, by means of underground workings in adjoining property belonging to defendants, and removing ores of great value. Belief is also sought by way jf injunction.

The order complained of was made upon petition by the plaintiffs, and after a hearing at which evidence was introduced by both sides. The only question submitted to us is whether the evidence is sufficient to justify the order. We are of the opinion that it is. It is often not possible upon such applications to present evidence showing with certainty that a trespass is being, or has been committed, or the extent of it. To obtain evidence to establish these matters is the very purpose for which the statute (Code of Civil Procedure, Sec. 1314) permits an inspection to be made. If, in a given case, it appeared that plaintiff had in his possession the facts showing the particulars of the wrong complained of, and the extent of it, an inspection would not be necessary. Where, however, he has sufficient evidence to warrant an honest belief that his rights are being invaded, but the means of ascertaining with certainty the actual conditions are in the exclusive control of the defendant, the court should, in the exercise of a sound discretion, and under proper restrictions, place the means of knowledge in the hands of the plaintiff. So, on the other hand, it often happens in controversies over mines that the defendant is charged with trespassing upon the rights of the plaintiff by means of operations conducted by tlie former witliin the limits of bis own territory; as, for instance, where the charge is that the defendant is taldng ores from a vein or lode claimed by the plaintiff by virtue of his ownership of the apex of it, sc situated with reference to his end lines as to give him extralateral rights. In such case it is frequently necessary, to a proper adjustment of l lie conflicting claims, that the defendant be permitted to enter upon the premises of the plaintiff to observe the physical and geological facts apparent in the openings made in plaintiff’s premises. Access to them is often not possible except through the shaft and other workings of the plaintiff. Neither of the parties should, under such circumstances, be compelled to accept the evidence of the facts as given by his adversary without an opportunity to controvert them, or to satisfy himself that such evidence is trustworthy. Where, as in quartz mining, operations are conducted almost exclusively beneath the surface, the owners of adjoining property have no means of informing themselves as to the extent and condition of them; and when controversies arise as to the respective rights of such owners, the court having jurisdiction of the controversy should, under the power conferred by the statute, afford the parties every reasonable facility for obtaining the facts. From the very nature of the case, the ignorance of the party invoking the aid of the court, and the want of the means to acquire the information necessary to make out his case, are of the greatest import. If these facts appear, and the circumstances otherwise appearing to the court in the evidence furnish ■reasonable ground for the belief that an inspection will aid the court in the investigation of the case, the order should be granted.

The evidence in the record before us establishes these facts: The property of the plaintiffs adjoins that of the defendants. The plaintiffs have no openings in their property, and therefore- no means of ascertaining the conditions beneath the surface. Defendants are engaged in mining through a shaft on their own premises and through drifts and tunnels extending therefrom, some of them in the direction of plaintiffs’ premises. Blasting can be heard, and the concussion created by it felt, by persons residing’ on the premises in the. same relative position of plaintiffs’ premises. The defendants have been removing large amounts of ore through their shaft for months, and have refused to permit any one to enter the shaft, or even the inclosnre built around it. There is some evidence tending to show that they deny that plaintiffs have any right to the minerals beneath their surface. . So far as we can judge from the record, tile title of both plaintiffs and defendants is based upon a placer ’patent from the United States. The surface has been platted as an addition to the city of Butte. The respective parties own certain of the lots and blocks, and claim the mineral rights to the middle line of the adj¿cent streets and alleys. Prima facie, therefore, they have no extralateral rights.

Upon these facts the court granted the order, subject to the limitation that the inspection should extend to no other workings than those made in the direction of plaintiffs-’ premises.

We do not think there was a, manifest abuse of discretion, though the defendants’ witnesses, acquainted with the underground -workings, testified that there had been no invasion of plaintiffs’ rights. The plaintiffs are entitled to be informed of the actual conditions by personal observation. Inspection orders are, in their nature, search warrants to obtain evidence. Search warrants will issue in certain cases (Penal Code, Sec. 2821) to bring personal property into the presence of the court, upon affidavit or deposition showing the facts tending to establish the grounds of the application or probable cause to believe they exist (Id. Sec. 2824). The officer executing the warrant may, if refused admittance, break open and enter the house or other buildings to be searched, in order to- find the the property. (Id. Sec. 2828.) By analogy,, the evidence upon which the order of inspection is made need go1 no- further than would be necessary to support a search warrant in a, given case.

The writ is denied, and the proceeding is dismissed.

Dismissed.


author: MR. JUSTICE 1MGOTT

text:
    MALONEY et al., Respondents, v. KING et al., Appellants.
    (No. 1,813.)
    Application eok Stay of Peooeedings.
    (Submitted May 3, 1002.
    Decided May 5, 1902.)

      Injunction — Appeal—Stay of Proceedings.

    1. Pending an appeal from an injunction order, pendente lite, restraining appellants from entering, or mining, in part of a certain lode claim of wiiicli they were in possession, they may not have an order from the supreme court suspending' the injunction, since the supreme court is not authorized to suspend the operation of, vacate, or set aside, a prohibitory injunction order during the pending of an appeal therefrom.
    2. Obiter: Pending an appeal from a prohibitory injunction order, pendente Ute, the district court inis jurisdiction to enjoin either party from destroying or injuring the property in dispute.

      Appeal from- Dish-id Court, Silver Bow County; William Clancy, Judge.

    Action by -Fames IL Maloney and others against Silas E. •King and others. From an order restraining defendants from entering or mining on a certain claim, they appealed. Application for stay of proceedings pending appeal.
    Denied.

      Messrs McBride & McBride, for Appellants.

      Mr. C. P. Drennen-, and Messrs. McIIatton & Colter, for Respondents.
   MR. JUSTICE 1MGOTT

delivered the opinion of the court.

The defendants have appealed from an injunction order pendente lite, entered on the 1st day of March, restraining them from entering or mining in part of a certain lode claim, title to which is asserted by the defendants, and from commencing any suit against the plaintiffs with reference to the carrying on of mining', or the breaking or removal of ore therefrom by the plaintiffs, and from interfering with them, in the mining, transportation, and disposal of such ores. In form the injunction is prohibitory. They noov apply to this court for an order staying the order appealed from, and all proceedings thereunder, pending the appeal.

Section 21 of the Code of Civil Procedure has to do with the determination by the supreme court of causes on appeal, and not with its powers pending appeal. Section 23 of the same Code declares that the supreme court may continue in force an injunction order made by a district court or judge, or grant an injunction order and writ, pending an appeal to the supreme court from an order refusing or dissolving an injunction. No provision of either section is pertinent. The appellants seem to base their application upon Subdivision 3 of Section 1123 of the Code of Civil Procedure, as amended in 1899 by House Pill No. 124 (Laws of 1899, pp. 146, 141), and to rely upon authority supposed to be conferred thereby. We shall treat the application as based upon the subdivision cited. Section 1122, as amended by the same bill, contains similar language. This sub-division provides, among other things, that on appeal from an order granting or refusing a new trial, or granting, dissolving, or modifying an injunction, or refusing to grant, dissolve, or modify an injunction, or dissolving or refusing to dissolve or modify an attachment, or appointing or refusing to appoint a receiver, or giving directions with respect to a receivership, or refusing to vacate an order appointing or affecting a receiver, or directing the delivery, transfer, or surrender of property, or from any special order made after final judgment, or from an interlocutory judgment or order in actions for partition of real property, or from an order confirming, changing, modifying, or setting aside the report in whole or in part of referees in such actions for partition, the supreme court or a justice may, pending the appeal, “stay all proceedings under (die order appealed from, on such conditions as may seem proper.” It prescribes some, at least, of the powers wliicli tlic supreme court may, in a suitable case, exercise during tlie time an appeal is pending. Notwithstanding the generality of the language, the provision quoted is not applicable to all the orders enumerated in Subdivision 3, supra. It applies only to orders under which proceedings are to be, or may be, taken.

The respondents contend that the order appealed from in this case simply restrains the appellants from doing certain acts,— requiring inaction of them; and that the respondents are not commanded or permitted to do anything by virtue of the order. There are, therefore, as they argue, no proceedings to be taken under the order; hence, they say, an arrest or stay of proceedings, the order being self-executing, could serve no purpose. On the other hand,’ the appellants insist that the injunction, though prohibitory or restrictive in form, is in part mandatory in effect, asserting that they were in possession of the property which they are enjoined from entering, and that the practical operation of the order, in so far as it restrains them from entering, is to eject them. If this be the correct interpretation, the appellants, in virtue of Section 1133 of the Code of Civil Procedure, have already secured a stay of proceedings by perfecting the appeal. Por example, the iujxxnction could not be used to oust them from the property in their possession at the time it was granted, nor would they be in contempt for remaining in possession; and so in respect of any mandatory feature of the order. Por the appellants to remain as they were when the injunction was granted is not a violation of the injunction. (Stewart v. Superior Court, 100 Cal. 543, 35 Pac. 156; Schwarz v. Superior Court, 111 Cal. 106, 43 Pac. 580; Bullion, Beck & Champion Min. Co. v. Eureka Hill Min. Co., 5 Utah, 151, 13 Pac. 174.) The appellants were, presumably, still in possession when the appeal was taken, and no reason is shown to exist for resort to this court in the matter. Nor would such a stay, when formally granted, operate so as to x^acate, or suspend the effect of, an injunction order, if prohibitive merely, for any time or for any purpose. It would be utterly futile, for there would, not be any proceedings to arrest. That the application musí be denied,, in so far as it seeks a stay of proceedings under the order, should seem manifest. Whatever proceedings, if any, may be taken under the order, are effectually arrested by the appeal.

If the injunction is mandatory in effect, the appeal stays proceedings; if merely prohibitory, matters are to remain in statu qua, and there are no proceedings to- be taken under it,— no affirmative acts are necessary to execute it. What the appellants really desire, and by their application intended to ask for, is the vacation or annulment of the order pending the appeal, — and this upon the theory, necessarily, that the injunction is prohibitory only. They do not, in fact, desire this court to grant a stay of proceedings, but that the operation of the order be suspended, and its effect destroyed, while the cause is here on appeal, to the end that they may proceed to do the acts and. things prohibited by it without committing contempts of the court below. Such authority is not'conferred by Subdivision 3, supra> which is silent upon the subject of setting aside, suspending, or vacating an order appealed from. Incidental power necessary for the effective exercise of the right to stay proceedings is, of course, impliedly granted; but neither express nor implied power to set aside, vacate, or suspend the effect of, a prohibitory injunction order is conferred or declared by Section 1722, or Subdivision 3, supra. The question here considered was presented and decided (and an opinion delivered orally) on May 20, 1901, in cause No. 1,680, entitled “Heinze et al. against Boston & Montana Consolidated Copper & Silver Mining Company.” We held then, as we hold now, that the court may not, by virtue of anything contained in Section 1722 or Subdivision 3 of Section 1723, supra, —whether authority be thereby conferred, or pre-existing power be merely recognized and declared, — suspend (he operation of, vacate, or set aside, a prohibitory injunction order during the pendency of an appeal therefrom.

Nor is it necessary or proper to the complete exercise of appellate jurisdiction that tlie order be modified, vacated, or rendered dormant v/liile the appeal is pending. If it be conceded that Section 1722 and Subdivision 3 of Section 1723, sufra-, do not limit the authority, pending appeal, of the supreme court over the orders enumerated, to the exercise of the poAver therein mentioned, and that the court may employ any Avrit or process necessary or proper to the end that property Avliich is the subject of litigation may be preserved for the benefit of the party avIio shall ultimately prevail, still Section 3 of Article VIII of the Constitution, and Section 19 of the Code of Civil Procedure, cannot be successfully invoked upon the present application. Neither of them authorizes the relief AA'hich the appellants uoav seek from this, court; namely, the A’acation or suspension of a prohibitory injunction order pending appeal from it. If the respondents are injuring or destroying the property in controversy, the district court doubtless has jurisdiction to enjoin them, and thereby preserve it, until a final determination shall be made of the questions between the parties, and Avoiild, it must be presumed, do so upon a proper motion and sufficient slioAving made in the action. In a case of this kind neither pa] iy should be permitted, pending the action, to consume, take a ay ay, or Avaste the substance of the estate. An order intended to preserve the property obtained by one party should not be permitted to be used as a license to him to destroy or injure it.

The case of Forrester et al. v. Boston & Montana Consolidated Copper and Silver Mining Co., 22 Montana Reports, 430, 56 Pacific Reporter, 868, is not in point. There this court granted a stay of proceedings under a nonappealablo order appointing a receiver, pending appeal from an order refusing to Aracato the order of appointment. In that case; the; district court, through its receiver’, Avas acting under the order; and hence there Ave-re proceedings to be stayed.

The application is denied.

Denied.


author: MR. JUSTICE PIGOTT

text:
    MALONEY et al., Respondents, v. KING et al., Appellants.
    (No. 1,812.)
    ON jMctfon to Modify Pekpetual INjuNotion.
    (Submitted May 3, 1902.
    Decided May 5, 1902.)

      Injunction — Appeal—Slay of Perpetual Injunction — Motion to Modify.

    1. Tlie supreme court is without authority to grant an order modifying or vacating a perpetual injunction pending appeal from a judgment embracing it.
    2. Tinder Section 1733 of the Code of Civil Procedure, a mandatory injunction is stayed by perfecting an appeal from the decree.
    •3. The objection that a decree granting a perpetual injunction is void, as. not being within the issues, will not be considered on a motion to stay the injunction during the pendency of the appeal.

      Appeal from District Court, Silver Dow County; William Clancy, Judge.

    Action by John II. Maloney and others against Silas P. King and others. Judgment was rendered for plaintiffs, and the defendants appealed. Motion .to stay a perpetual injunction till the' determination of the appeal.
    Denied.

      Messrs. McBride £ McBride, for Appellants.

      Mr. O. P. Premien, and Messrs. McITatton & Goiter, for Respondents.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

The defendants have appealed from a final judgment entered on the 5th day if April, 1902, which, among other things, perpetually enjoins them from entering, exploring or mining in part of a certain lode claim, and from commencing any action against the plaintiffs to protect and maintain their alleged title to the vein and ores therein, or to recover such ores, -They move tliau tlie judgment, in tlie particulars mentioned» be modified, and its effect suspended, pending appeal. They invoke the provision of Section 23 of the Code of Civil Procedure, authorizing the supreme court to continue in force an injunction order made by a district court or judge,'or grant an injunction order and writ, pending an appeal from an order refusing or dissolving an injunction, and also Bule XXI of this court, prescribing the procedure for obtaining such order pending appeal. Neither the section nor the rule has reference to staying the operation or effect of injunction orders. Moreover, each has xo do only with interlocutory orders of the district court or judge, not with final-judgments. Neither does Section 1122, or Subdivision 3 of Section 1723, of the- Code of Civil Procedure, as amended in 1899 by House Bill No. 124 (Laws of 1899, pp. 146, 147), have to do with final judgments, nor touch the matter of staying the operation of or suspending prohibitory injunction^, or proceedings thereunder. Except in so far as they had been ousted by the plaintiffs, the defendants were in possession at the time the judgment was rendered, and presumably so remain. If the injunction is mandatory, proceedings under it are stayed by the appeal. (Code of Civil Procedure, Sec. 1733.) Wa are not advised of any statute or other law- vesting power in the supreme court to grant, upon such an application as the one here made, an order modifying or /acating a perpetual injunction pending appeal from a judgment embracing it.

Further complaint is made by the defendants that In the particulars referred to the judgment is, upon its face, void, because it purports to determine a matter which was palpably without the issues fi amed; but this is not the occasion for considering it. We shall not, upon this application, decide the case upon the merits.

For these reasons, and upon the authority of Maloney v. King, 26 Montana Reports, 487 (68 Pac. 1012), just decided, the motion is denied.

Denied.


author: HR. CI-IIEE JUSTICE RRANTLY

text:
    DRISCOLL, Respondent, v. SHIELDS, Appellant.
    (No. 1,412.)
    (Submitted May 5, 1902.
    Decided May 5, 1902.)

      Appeal — Rules of the Supreme (Jourl — Defective Brief— Dismissal.

    An appeal wherein the appellant’s brief contains no assignment of the errors relied on, as is required by Subdivision “b” of Rule X of the Supreme Court, will be dismissed on' respondent’s motion.

      Appeal from District Court, Silver Boto County; John Lindsay, Judge.

    ActioN by Dennis Driscoll against Dan Shields. From a judgment for plaintiff, defendant appeals.
    Dismissed.

      Mr. J. L. Wines, for Appellant.

      Messrs. Mediation & Goiter, for Respondent.
   HR. CI-IIEE JUSTICE RRANTLY

delivered the opinion of the court..

Appeal by defendant from a judgment and an order denying him a new trial. At the hearing this day a motion is submitted asking that the appeal be dismissed for the reason, among others, that appellant’s brief filed in this court contains no assignment of the errors upon which he relies, as» is required by Subdivision “b” of Rule X of this court. Upon inspection of the brief, we find it wholly lacking in the particular mentioned. Upon the authority of Patterson v. Pfouts, 25 Mont. 163, 64 Pac. 222, and other cases, the motion must be sustained.

Dismissed.


author: ME. JUSTICE MILBUEN

text:
    WARREN, Respondent, v. HUMBLE et al., Appellants.
    (No. 1,409.)
    (Submitted March 4, 1902.
    Decided May 6, 1902.)

      Appeal — Time for Taking — Buies of the Supreme Court— Briefs.

      1. An appeal from a judgment of the district court, rendered on an appeal from an inferior court, not taken within ninety days after entry of the judgment, as required by Code of Civil Procedure, Sec. 1723, Subd. 2, is too late and will be dismissed.
    2. An order denying a new trial will foe affirmed on appeal where appellants’ brief fails entirely to comply with Subdivision 3a of Rule X of the Supreme Court, fails to make any reference by line or page to the transcript, and the appeal from the order denying the motion for a new trial is not referred to or submitted in the statement.

      Appeal from District Court, Bavalli County; F. II. Woody, Judge.

    ActioN by James Warren against J. L. Humble and others. Eroni a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Appeal from judgment dismissed, and order denying a new trial
    affirmed.

      Mr. Ilenry I. Myers, and Mr. William M. Draffen, for Appellants.
   ME. JUSTICE MILBUEN

delivered the opinion of the court.

This is an appeal from a judgment and an order denying defendants’ motion for a new trial, as appears from the notice of appeal as it is set out in the transcript. The brief of appellants states that “from this judgment this appeal is prosecuted.”

There was no appearance for respondent in this court.

It appears from examination of the transcript that the judgment appealed from was rendered in the district court on appeal from an inferior court. Tlie judgment in the district court was rendered and entered on December 21, 1898. The notice of appeal was served and filed on the 14th day of April, 1899. This court has no jurisdiction of this appeal, as the same was'not taken within ninety days after entry of the judgment. (Subdivision 2, Sec. 1723, Code of Civil Procedure; Gallagher v. Cornelius, 23 Mont. 27, 57 Pac. 447; Morris v. McLaughlin, 25 Mont. 151, 64 Pac. 219.)

The statement of the case in appellants’ brief fails entirely to comply with Subdivision 3 a of Rule N of this court, and fails, also, to make any reference by line or page- to the transcript. The appeal from the order denying the motion for a new trial is not referred to or submitted to us in the statement. This rule has been adverted to so often by this court that it is unnecessary for us to set it out in haec verba herein. Therefore the order of the district court denying the motion for a new trial must be and is affirmed.

The appeal from the judgment is dismissed, and the order denying the motion for a new trial is affirmed.


text:
    ALEXANDER, Appellant, v. FRANSHAM, Respondent.
    (No. 1,416.)
    (Submitted March 5, 1902.
    Decided May 12, 1902.)

      Mechanics' Liens — Foreclosure Decree — Judgment Against Husband — Injunction—Correction of Judgment.

    A judgment foreclosing a mechanic’s lien against the real estate belonging to a wife in suit against her and her husband is not invalid for the reason that the judgment declared to be a Hen is against the husband personally, and therefore the wife cannot enjoin execution sale of the property, but can only have the judgment corrected, if erroneous, by motion for a new trial • or on appeal.

      Appeal from District Gourt, Gallatin County; T. M. Pierce, Judge pro tern.

    Injunction by Oyntliia E. Alexander against William J. Fransliam, sheriff, to restrain an execution sale. From á judgment for defendant, plaintiff appeals.
    Affirmed.

      2Ir. IF. L. Holloway, and Mr. B. B. Hoffman, for Appellant.
    1. Cynthia E. Alexander being the sole owner of the land mentioned in these proceedings, which is the identical property mentioned in the case of Oarr v. Alexcmder, a judgment recovered against W. J. Alexander did not constitute a lien upon her property and could not be sold to satisfy a judgment. (Code of Civil Procedure, Secs. 1197; 2133, 1196, 1211.)
    2. The sheriff exceeded his authority in attempting to sell the interests of Cynthia E. Alexander in that real estate to satisfy the judgment against W. J. Alexander; that such a sale by the sheriff would cast a cloud upon the title of plaintiff’s property. (Code of Civil Procedure, Secs. 1224, 1225, 1233.)'
    3. The plaintiff had no speedy and adequate remedy at law, and, under the circumstances of this case, an injunction will lie. (Grigsby v. Schwarz, 82 Cal. 279; Hickman v. O’Neal, 10 Cal. 292; U. S. Bank v. Schultz, 2 Iiam. (Ohio), 471.)
    A sale by the sheriff and his execution and delivery of a deed would cast a cloud upon the title of the plaintiff in this action. (Pixley v. Higgins, 15 Cal. 128.)

      Mr. J. L. Staats, for Respondent.
    The issues found in the case of Carr v. Alexander are conclusive against the appellant. (Wingard v. Jamison (Wash.), 7 Pac. Rep. 863, and cases cited; Waymire v. San Francisco & S. M. By. Co., 112 Cal. 646; McCoy v. Qtáck, 30 Wis. 521; Doughthitt v. MacGlusky (Wash,), 40 Pac. Rep. 186.)
    The appellant had an adequate remedy at law in the main case. Slie did not move for a new trial, or an amendment of the judgment, or appeal from the same. When such is the status of the ease, appellant cannot be permitted to retry the issues in another adion. See authorities last above cited, and also Tevis v. Ellis, 25 Cal. 575; Long v. Neville, 36 Cal. 455; Ede v. Hazen, 61 Cal. 360.
    Appellant is deemed to be the owner. (Code of Civil Procedure, Sec. 2140.) The notice of lien stated the names of the owners who were the defendants in the suit, and the notice was part of Carr's complaint. Tire issue of ownership excluded the necessity of showing agency of husband for wife, but if it was necessary diere was ample proof that appellant ratified ■whatever the husband did in causing the labor to be performed, as by their joint answer they paid a part of the price and tendered what they claimed was the balance due. (Ilarlaan v. Stieffebeem, 87 Cal. 508.)
    The decision of the court is final on all questions which under the evidence might have been found either way. {Harper v. Lockhart (Colo.), 48 Pac. Pep. 901.
    In the absence of the evidence, where the findings support the judgment, they will not be disturbed. {Oulvier v. Game (Utah), 61 Pac. Pep'. 1008; Jenkins v. Frink, 30 Cal. 587; Firebaiujli v. Burbank, 121 Cal. 186; 2 Enc. PI. and Prac. 487; Morrow v. Ladder, 77 Wis. 77; Glaybangh v. Hennessy, 21 Ill. App. 124.)
    There is not suffHent. equity alleged in plaintiff's complaint, or shown by the findings of the court to maintain this action. {Fixing v. Higgins, 15 Cal. 127 ; Gohenv. Sharp, 44 Cal. 30; Roman Galholic Archbishop r. Shipman, 69 Cal. 586; McCormick v. Riddle, 10 Mont. 467.)
    If the judgment is regular and the appellant was a party to the proceedings, she is concluded-by the judgment, and her interest in the property, whatever it may be; is subject to sale under the execution. (Code of Civil Procedure, See. 2133.)
    The complaint of the appellant is insufficient to- justify the issuance of an injunction. {McCormick v. Riddle, 10 Mont. 467; Waldron v. Marsh, 5 Cal. 119; Mechanics’ Foundry v. Ryall, 75 Cal. 301; Thorn v. Sweeney, 12 Nev. 251; High on Inunctions, Sections 34, 722, and cases cited.)
   ME. CHIEF JUSTICE BEANTLY

delivered the opinion of the court.

This action was brought to obtain an injunction to perpetually restrain the defendant from proceeding to sell, under an execution in his hands as sheriff of Gallatin county, certain real estate belonging to the plaintiff. The execution was issued upon a judgment in favor of one Carr in an action brought by him in the district court of Gallatin county against the plaintiff and her husband, W. J. Alexander, the purpose of which was to foreclose a mechanic’s lien. The judgment was rendered against W. J. Alexander personally, but was declared a lien upon the property in controversy, the claim in suit being for work done by Carr as a mechanic upon certain improvements erected thereon. Upon a trial of the cause the district court found for the defendant, and rendered judgment in his favor for costs. Plaintiff has appealed.

The only question submitted to this court is whether the findings support the judgment. The findings are voluminous, and cover fully every issue in the case. We shall not undertake a discussion of them. The district court evidently proceeded upon the theory that in the investigation of this case it was bound by the judgment in the case of Carr v. Alexander, the same appearing upon its face to have been given and made in the proper exercise of jurisdiction regularly obtained over the subject-matter and the parties. There is nothing in the record to indicate that the conclusion reached was erroneous. The fact that the judgment in the case of Carr v. Alexander was rendered against W. J Alexander personally does not prevent it from being a valid lien against the property of the plaintiff, as was adjudged by the district court. If that judgment was erroneous in this particular, the plaintiff should have sought to have it corrected bjr motion for a new trial or upon appeal. Having failed to pursue tins course, the plaintiff must abide the consequences.

The judgment is affirmed.

Affirmed.