text:
    IN THE MATTER OF A.P., A Youth in Need of Care.
    No. 98-070.
    Submitted on Briefs June 11, 1998.
    Decided July 16, 1998.
    1998 MT 176.
    55 St.Rep. 715.
    962 P.2d 1186.
    289 Mont. 521.
    See C.J.S. Indians S 135.
    For Appellant: Terryl Healy, Cut Bank.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Sarah A. Bond, Assistant Attorney General, Helena; Brant Light, Cascade County Attorney, Great Falls; Bethany F. Schendel, Great Falls; Patrick Watt, Jardine, Stephensen, Blewett & Weaver, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 This is an appeal from the December 8, 1997 Findings of Fact, Conclusions of Law and Order of the Eighth Judicial District Court, Cascade County, denying the motion of the Gros Ventre and Assiniboine Tribes of the Fort Belknap Community Council (Tribes) to transfer jurisdiction of this matter to the Fort Belknap Tribal Court (Tribal Court). We affirm the decision of the District Court.

Background

¶2 A.P. was born in Great Falls, Montana, on March 27,1995. He and his biological mother, J.P, were domiciled in and residents of Great Falls. Great Falls is not located within the exterior boundaries of any Indian reservation. A.P.’s father has had no contact with the child or his mother since A.P. was born. J.P. is listed as one-half “Indian” in the Fort Belknap Tribal enrollment book; other evidence presented to the District Court indicates that she is part Assiniboine.

¶3 Whether A.P. is eligible for tribal membership, and is, thus, an “Indian Child” for purposes of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-63, is in dispute. According to Bureau of Indian Affairs records, A.P. is not eligible for enrollment in the Fort Belknap Indian Community. A Tribal historian, however, testified that A.P. may be enrollable as either an Assiniboine or as a Gros Ventre by reason of his quantum of Indian blood. The Tribes’ motion to transfer alleges that A.P. is eligible for enrollment in the Assiniboine Tribe. For purposes of our decision here, we assume, arguendo, that A.P. is eligible for membership in one of these tribes and is, thus, an “Indian Child” for purposes of the ICWA, 25 U.S.C. § 1903(4). See also Adoption of Riffle (1995), 273 Mont. 237, 242, 902 P.2d 542, 545 (Riffle I) (tribe is the ultimate authority on eligibility for tribal membership).

¶4 In September 1995, based upon information that A.P. was in danger as a result of J.P.’s long-standing chemical abuse problems, the Montana Department of Public Health and Human Services (DPHHS) obtained an order for temporary investigative authority (TIA) and custody from the District Court. DPHHS notified the Tribes of these proceedings in accordance with the ICWA, 25 U.S.C. § 1912(a), and counsel was appointed for J.P., 25 U.S.C. § 1912(b). Counsel was also appointed for A.P.

¶5 DPHHS maintained custody of A.P. and worked with J.P. in an attempt to reconcile mother and child. Ultimately, however, J.P. was unable to complete her treatment plan. Various court proceedings with respect to A.P. occurred between September 1995 and before the closing of the case on DPHHS’s petition for permanent custody and approval of preadoptive placement on June 9, 1997. Specifically, there was a show cause hearing on September 27,1995, with respect to continuing the TIA; there was an adjudicatory hearing on the state’s petition for legal custody on April 25,1996; there was a hearing on October 22,1996, to terminate A.P.’s father’s parental rights and to terminate J.P.’s parental rights, the latter by consent; and the permanent custody award and permanency plan were set for review on June 5, 1997. On June 9, 1997, the court issued its written order awarding the state permanent legal custody and closing the matter, acknowledging that DPHHS had made an appropriate plan for A.P.’s permanency.

¶6 The Tribes were given timely notice of each proceeding in accordance with 25 U.S.C. § 1912(a). Furthermore, the Tribes received copies of the various petitions and motions filed in the state court proceedings along with copies of the District Court’s orders resulting therefrom. Notwithstanding, the Tribes did not move to transfer A.P.’s case to Tribal Court, did not move to intervene, and did not appear or file documents in any of these proceedings prior to the court’s June 9, 1997 order. On July 7, 1997, however, approximately one month after the case was closed and twenty-two months after first receiving notice of the proceedings involving A.P, the Tribes first appeared, moving to transfer A.P.’s case to Tribal Court under the ICWA.

¶7 Apart from the proceedings in District Court, once custody had been awarded to DPHHS, this agency exercised its authority to make administrative placement decisions for A.P. In accordance with the placement preferences and spirit of the ICWA, DPHHS worked with the Tribes to attempt placement on the reservation and in accordance with J.P.’s wishes. In March 1997, DPHHS placed A.P. with a Fort Belknap Reservation family in accordance with the Tribes’ request. That placement failed when the family requested that the State remove A.P. from their home. The Tribes offered no other appropriate placements on the reservation.

¶8 Finally, in the summer of 1997, A.P. was placed with his fifth and, thus far, last placement. A.P.’s present placement is with an Indian custodian and her husband who reside in Great Falls. The Indian custodian intervened in these proceedings in October 1997. The Indian custodian is a member of the Turtle Mountain Band of the Chippewa Tribe, and she has contacted the Tribes to attempt to enroll A.P. in his Tribe. The Indian custodian testified in District Court that, as an Indian, she understands the need for A.P. to be raised to appreciate his affiliation with the Gros Ventre Tribe and she has testified that she will maintain ties with the Fort Belknap Reservation and raise A.P. to understand the culture of the Tribes of which he is a part. A.P. remains with this family in Great Falls. It appears that they are providing a secure and loving home for him and that he is thriving.

¶9 The instant appeal is from the District Court’s denial of the Tribes’ July 7,1997 motion to transfer which was followed by a jurisdictional hearing held over three days on October 14, October 30 and November 13,1997. In summary, 25 U.S.C. § 1911(b) of the ICWA allows the tribe of an Indian child to move to transfer state court foster care placement and parental rights termination proceedings to tribal court. This statute provides that the tribal court is the preferred forum, but allows a state court to refuse to transfer based on a showing that good cause exists not to transfer, based upon objection by either parent or based upon declination by the tribal court.

¶10 In the case at bar, the District Court found that it was not in A.P.’s best interests to transfer his case. The court concluded that § 1911(b) did not apply as there was no state court proceeding when the Tribes’ transfer motion was filed; because the Tribes’ transfer motion was not filed during a foster care placement of or termination of parental rights proceeding; and because this section is not applicable to a preadoptive placement proceeding. From the District Court’s denial of the Tribes’ motion to transfer, this appeal followed.

Issues

¶11 The issues on appeal, as framed by the State, are as follows:

¶12 1. Did the District Court correctly conclude that 25 U.S.C. § 1911(b) of the ICWA does not provide for transfer to tribal court of a state administrative preadoptive placement occurring after state court proceedings had closed and parental rights had terminated?

¶13 2. If 25 U.S.C. § 1911(b) of the ICWA is applicable, did the court correctly conclude that good cause existed not to transfer jurisdiction because the proceedings, having commenced two years earlier and having closed one month prior to the motion to transfer, were at an advanced stage?

¶14 3. Did the District Court correctly apply this Court’s rule in In the Matter of T.S. (1990), 245 Mont. 242, 801 P.2d 77, and In the Matter of M.E.M. (1984), 209 Mont. 192, 679 P.2d 1241, in considering the best interests of the child as modified by the considerations listed in the Bureau of Indian Affairs Guidelines, to find that it was not in the child’s best interests to transfer?

¶15 Since our discussion of Issue 1 is dispositive, we decline to address Issues 2 or 3.

Standard of Review

¶16 The issues raised in this case involve questions of law. We review a district court’s conclusions of law simply to determine whether the court’s interpretation of the law is correct. Adoption of Riffle (1996), 277 Mont. 388, 391, 922 P.2d 510, 512 (Riffle II).

Discussion

¶17 For purposes of our discussion, it is important to bear in mind that the progression of A.P.’s case involved different state court proceedings, each with its own statutory requirements. With its September 1995 petition for TIA, DPHHS proceeded under § 41-3- 404, MCA, and obtained temporary custody in April 1996. The agency then proceeded under §§ 41-3-601 to -612, MCA, for termination of parental rights and for permanent custody. On June 5, 1997, the court reviewed DPHHS permanency plan for A.P, closed the final case petition for permanent custody, and approved DPHHS to proceed with adoption and preadoptive placements. Following this order, the agency placed A.P. in a preadoptive placement with his present Indian custodian and her husband.

¶18 These distinctions are important in our determination of whether the requirements of the ICWA have been met as regards the particular state court proceedings at issue. See M.E.M., 209 Mont. 192, 679 P.2d 1241; Riffle II, 277 Mont. 388, 922 P.2d 510.

¶19 In relevant part, 25 U.S.C. § 1911, provides:

(b) Transfer of proceedings; declination by tribal court
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

As can be seen from the plain language of this statute, state court proceedings are required to be transferred to tribal jurisdiction where “foster care placement” or “termination of parental rights” is the matter at issue. As noted by the Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29:

At the heart of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings. Section 1911 lays out a dual jurisdictional scheme.... Section 1911(b)... creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state-court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of “good cause,” objection by either parent, or declination of jurisdiction by the tribal court.

Holyfield, 490 U.S. at 36, 109 S.Ct. 1597 (emphasis added).

¶20 Foster care placementis defined in 25 U.S.C. § 1903(l)(i) and involves temporary placement of the child “but where parental rights have not been terminated.” Section 1903(l)(ii) defines termination of parental rights as “any action resulting in the termination of the parent-child relationship.” Accordingly, under § 1911(b), the ICWA provides only for transfer of state court proceedings prior to termination of parental rights.

¶21 In the instant case, prior to the termination of parental rights, there was no petition by either of A.P.’s parents for transfer of the state court proceedings to Tribal Court. Moreover, there was no challenge or objection by A.P.’s parents or the Tribes to such proceedings taking place in state court, to the temporary and permanent custody orders or to the termination of parental rights order issued by the court in October 1996. Indeed, the Tribes effectively declined transfer of jurisdiction by failing to request transfer in the state court proceedings under § 1911(b) and by failing to intervene under § 1911(c) despite being given actual notice of the proceedings.

¶22 By the time the Tribes first appeared and moved to transfer, A.P.’s case had progressed to the point where his parents’ rights had been terminated and to the point where custody had been permanently placed with DPHHS with approval for preadoptive placements and adoption. In fact, state court proceedings had terminated altogether before the Tribes’ motion was filed. Accordingly, we conclude that the District Court correctly determined that § 1911(b) did not apply to the Tribes’ transfer motion because, at the time it was filed, there was no ongoing state court proceeding for foster care placement or termination of parental rights.

¶23 Rather, what was extant at the time the Tribes’ motion to transfer was filed was A.P.’s preadoptive placement with the Indian custodian and her husband. Section 1903(l)(iii) defines “preadoptive placement” as “the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement. [Emphasis added.]” The District Court concluded that § 1911(b) does not apply to preadoptive placement proceedings. We agree.

¶24 Our prior cases involving preadoptive and adoptive placements have involved only the intervention and placement preference provisions of 25 U.S.C. § 1915, rather than transfer issues. See e.g., Riffle II, 277 Mont at 392, 922 P.2d at 513; Matter of Baby Girl Jane Doe (1993), 262 Mont. 380, 385-86, 865 P.2d 1090, 1093. Other courts faced with this question, however, have concluded that § 1911(b) only applies to foster care placements and termination of parental rights proceedings. See Matter of J.B. (Okla.App. 1995), 900 P.2d 1014 (transfer authority under § 1911(b) is limited to proceedings for “foster care placement” and “termination of parental rights” and not to “preadoptive placements” as § 1903(1) áeftiLesth.oseterm.s); Matter of Ashley Elizabeth R. (N.M.App. 1993), 863 P.2d 451 (since children were neither residents nor domiciled on the reservation, § 1911(b) applies to the tribe’s motion to transfer the foster care placement at issue).

¶25 The Tribes argue that we should disregard the plain language of § 1911(b), and, because § 1911(c) empowers a tribe to intervene “at any point in the proceedings,” that we should allow the motion to transfer despite the fact that the foster care placement proceedings and termination of parental rights proceedings were completed prior to the motion being filed. We decline to do so.

¶26 We have stated that a tribe’s right to intervene in a proceeding is not impaired if it does not intervene promptly after receiving notice. Riffle I, 273 Mont. at 241, 902 P.2d at 544. However, timeliness aside, the Tribes’ argument fails to recognize the fundamental difference between transferring a case to an entirely different court system, on the one hand, and granting participation by way of intervention in ongoing proceedings in the state court that already has had a substantial and lengthy involvement in various aspects of the case, on the other. As discussed in the BIA guidelines at 44 Fed. Reg. 67590 (1979):

This section specifies that requests are to be made promptly after receiving notice of the proceeding.... While the Act permits intervention at any point in the proceeding, it does not explicitly authorize transfer requests at any time. Late interventions do not have nearly the disruptive effect on the proceeding that last minute transfers do. A case that is almost completed does not need to be retried when intervention is permitted. ... Although the Act does not explicitly require transfer petitions to be timely, it does authorize the court to refuse to transfer a case for good cause. When a party who could have petitioned earlier waits until the case is almost complete to ask that it be transferred to another court and retried, good cause exists to deny the request.

See also People in Interest of J.J. and S.J. (S.D.1990), 454 N.W.2d 317 (tribal motion to intervene in an extant proceeding was granted; but appropriate, though untimely, § 1911(b) motion to transfer was denied because, citing the BIA guidelines, intervention is far different than transfer and would subject children to potentially dangerous situations and not be in their best interest).

¶27 Here, as to the foster care placements and termination of parental rights, A.P.’s case was not “almost completed,” but, rather, these proceedings had been completed and closed for a month when the Tribes’ transfer motion was filed. Even if § 1911(b) allowed transfer at that point in time (which it does not), the disruptive effect of transfer to an entirely new court system for more litigation and possible retrial is manifest and is hardly in the best interest of the parents or the child.

¶28 We conclude that the District Court properly denied the Tribes’ § 1911(b) transfer motion inasmuch as it was filed at a time when there was no foster care placement nor termination of parental rights proceedings before the court, those proceedings having been completed. Moreover, we conclude that, in the context of a preadoptive placement following the termination of parental rights, the court properly determined that § 1911(b) is inapplicable. Accordingly, we hold that the District Court’s denial of the Tribes’ motion to transfer jurisdiction of A.P.’s case to Tribal Court was correct as a matter of law.

¶29 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, GRAY and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    PENNY HADFORD, Plaintiff and Appellant, v. CREDIT BUREAU OF HAVRE, INC., and JOHN DOES I-IV, Defendants and Respondents.
    No. 97-485.
    Submitted on Briefs March 12, 1998.
    Decided July 20, 1998.
    1998 MT 179.
    55 St.Rep. 727.
    962 P.2d 1198.
    289 Mont. 529.

      See C.J.S. Corporations S 723.

      For Appellant: Ward E. Taleff; Alexander, Baucus, Taleff & Paul, Great Falls.
    For Respondents: Bruce E, Swenson; Barron & Swenson, Havre.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Penny Hadford (Hadford) appeals from the judgment entered by the Twelfth Judicial District Court, Hill County, on its order granting the summary judgment motion of Credit Bureau of Havre, Inc. (Credit Bureau) and denying her motion to further amend her complaint. We affirm.

¶2 We restate the issues on appeal as follows:

¶3 1. Did the District Court err in granting summary judgment to the Credit Bureau based on its conclusion that the Credit Bureau did not receive sufficient notice of the wrongful discharge action against Big Sky Billing Service, Inc.?

¶4 2. Did the District Court abuse its discretion in denying Hadford’s motion to further amend her complaint to substitute Teddy Reber as a named defendant?

BACKGROUND

¶5 Hadford filed a complaint against Big Sky Billing Service, Inc. (Big Sky) in 1994, alleging wrongful discharge and failure to pay overtime compensation (the wrongful discharge action). Hadford served the summons and complaint on Teddy Reber (Reber), president of Big Sky, who acknowledged service on Big Sky’s behalf as its registered agent. Reber owned 50% of the common stock of Big Sky and was one of its two directors. The other director, Constance Reber, owned the remaining 50% of Big Sky’s common stock. Neither director was named or served in the wrongful discharge action.

¶6 Hadford discovered that Big Sky had no assets, but she continued to pursue the wrongful discharge action and obtained a default judgment against Big Sky in May of 1995. In an attempt to collect the default judgment, Hadford filed a complaint against the Credit Bureau and John Does I through IV in September of 1995. She alleged that she had obtained a default judgment against Big Sky; that the John Does were persons who “participated in the actions referred to herein” or the last designated directors of Big Sky; that Big Sky had been dissolved to avoid paying Hadford’s claims; that the dissolution involved fraudulent conveyance, deceit, and constructive fraud; and that Big Sky was the alter ego of the Credit Bureau, which was liable for the default judgment obtained against Big Sky. She requested a judgment requiring the Credit Bureau and the John Does to pay the amount specified in her default judgment against Big Sky. A summons was issued and served on the Credit Bureau but no summonses were issued for the John Does.

¶7 The Credit Bureau moved to dismiss Hadford’s complaint for failure to state a claim on which relief could be granted. The District Court denied the motion and the Credit Bureau filed its answer.

¶8 Hadford subsequently amended her complaint to expand the allegations regarding the alter ego status of the Credit Bureau, the John Does, and Big Sky. She alleged that, as alter egos of Big Sky, the Credit Bureau and the John Does had actual or constructive notice that they were in jeopardy of personal liability in her wrongful discharge action and a fair opportunity to defend themselves in that action. The Credit Bureau moved to dismiss the amended complaint and the District Court again denied the motion.

¶9 The Credit Bureau then petitioned for a writ of supervisory control, requesting this Court to vacate the order denying its motion to dismiss and to direct the District Court to dismiss the amended complaint with prejudice. We denied the petition on June 25,1996.

¶10 The Credit Bureau having answered the amended complaint during the pendency of proceedings in this Court, the District Court set an April 22,1997, trial date. The Credit Bureau moved for summary judgment in March of 1997, arguing that it had insufficient notice of the wrongful discharge action to be held personally liable on the amount of the default judgment therein and that it was not the alter ego of Big Sky. In a supporting affidavit, Reber stated that the corporate activities of Big Sky and the Credit Bureau were kept separate and that all corporate formalities were followed. The Credit Bureau also submitted minutes from the annual shareholders’ meetings of both corporations and other documents indicating that Reber was the sole shareholder and a director of the Credit Bureau. Hadford opposed the Credit Bureau’s motion and moved to further amend her complaint to substitute Reber for John Doe I and to continue the trial.

¶11 The trial date was vacated and, after a hearing on both parties’ motions, the District Court granted the Credit Bureau’s motion for summary judgment and denied Hadford’s motion to further amend her amended complaint. Judgment was entered accordingly and Hadford appeals from both the grant of summary judgment to the Credit Bureau and the denial of her motion to amend.

DISCUSSION

¶12 1. Did the District Court err in granting summary judgment to the Credit Bureau based on its conclusion that the Credit Bureau did not receive sufficient notice of the wrongful discharge action against Big Sky?

¶13 The District Court determined that, because the Credit Bureau had not received sufficient notice of — and an opportunity to defend against — Hadford’s wrongful discharge action, no genuine issues of material fact existed regarding whether the Credit Bureau could be held liable for the default judgment therein. The District Court also determined that the notice issue was dispositive without regard to whether the Credit Bureau was the alter ego of Big Sky and, as a result, it did not reach the alter ego issue.

¶14 We review a district court’s ruling on a motion for summary judgment de novo, applying the same Rule 56(c), M.R.Civ.P., criteria applied by the district court. Montana Metal Buildings, Inc. v. Shapiro (1997), 283 Mont. 471, 474, 942 P.2d 694, 696 (citation omitted). The moving party must establish both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Montana Metal Buildings, 283 Mont. at 474, 942 P.2d at 696 (citation omitted). Once the moving party has met its burden, the party opposing summary judgment must present evidence raising a genuine issue of material fact. Montana Metal Buildings, 283 Mont. at 474, 942 P.2d at 696 (citation omitted). The evidence must be substantial, “not mere denial, speculation, or conclusory statements.” Klock v. Town of Cascade (1997), 284 Mont. 167, 174, 943 P.2d 1262, 1266 (citation omitted).

¶15 In this case, the District Court’s order granting summary judgment is based on its conclusion that, because the Credit Bureau did not receive sufficient notice of the wrongful discharge action, the Credit Bureau cannot be held liable on the default judgment. We review a district court’s conclusions of law to determine whether they are correct. Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont. 486, 491-92, 943 P.2d 85, 89 (citation omitted).

¶16 Rule 4D, M.R.Civ.P., governs service of process on both individuals and corporations. “The purpose of serving a summons is to give notice to the defendant and thereby afford him the opportunity to defend himself or his property — an essential to due process of law.” Haggerty v. Sherburne Mercantile Co. (1947), 120 Mont. 386, 396-97, 186 P.2d 884, 891. Service of process also provides the court with jurisdiction over the person or entity sued. In re Marriage of Grounds (1995), 271 Mont. 350, 352, 897 P.2d 200, 201 (citation omitted). Actual knowledge is not a substitute for valid service. Marriage of Grounds, 271 Mont. at 352, 897 P.2d at 201 (citation omitted).

¶17 Hadford concedes that the Credit Bureau was not served in the wrongful discharge action and that, generally, the lack of service would bar her from holding it liable for the default judgment obtained therein. She contends, however, that the Credit Bureau was Big Sky’s alter ego and, as a result, it received adequate notice that it was in jeopardy of personal liability and an opportunity to defend. In effect, she argues that notice to Big Sky was notice to its alter egos. We disagree, and address the authorities on which Hadford relies in turn.

¶ 18 Hadford first urges that the following exception to the general rule requiring service, set forth in 62B Am.Jur.2d, Process, § 284, p. 977-78, fits perfectly with the facts of this case:

where the corporations have so intertwined their affairs and disregarded separate corporate forms that they are considered the same entity,... there is interlocking management between the corporations, or the person served is of such status within the corporate hierarchy that the parent corporation should be notified of service of process against it.

However, Hadford fails to take into account the context in which the quoted exception appears.

¶19 The section preceding that quoted above states the general rule that service on the parent, subsidiary or affiliate of a corporate defendant generally does not constitute service on the defendant. 62B Am.Jur.2d, Process, § 283, p. 976-77. That general rule relates to a situation where a related corporation, rather than the corporate defendant named in the action, is served; such service generally is insufficient. The exception set forth in § 284, on which Hadford relies, relates to the same situation — namely, service on a related corporation rather than on the named corporate defendant; such service is sufficient to constitute service on the named corporate defendant under the circumstances outlined in § 284.

¶20 In the present case, the opposite procedural backdrop is present. Big Sky, the named corporate defendant in Hadford’s wrongful discharge action, was served in that action and Hadford now attempts to render that service sufficient on a corporation never named in the original action under the alter ego theory. The quoted exception clearly does not apply to the situation before us here.

¶21 Hadford also contends that we held one entity liable for the obligations of another by piercing the corporate veil in the similar case of Glaspey v. Workman (1988), 230 Mont. 307, 749 P.2d 1083. She argues that Reber and the Credit Bureau were hiding behind the corporate veil when they permitted a default judgment to be entered against Big Sky and that they are liable on the judgment under Glaspey. Hadford is correct that Glaspey involved an action to pierce the corporate veil to collect on a judgment for wages, but that is where the similarity between the two cases ends.

¶22 After succeeding in a wage claim action against his employer, the plaintiff in Glaspey executed on the judgment but obtained only $5.49. He subsequently commenced an action to pierce his employer’s corporate veil to collect on the judgment. Glaspey, 230 Mont. at 308, 749 P.2d at 1084. The action apparently was successful, but the trial court denied attorney fees on the basis that no statute authorized such fees and the plaintiff appealed. The issue before us was whether the statute authorizing attorney fees in wage collection actions permitted the employee to recover attorney fees in an action to pierce the corporate veil. Glaspey, 230 Mont. at 308, 749 P.2d at 1084. Interpreting the plain meaning of § 39-3-214, MCA, we concluded that the statute permitted recovery of attorney fees in a successful action to pierce the corporate veil to collect a judgment for wages. Glaspey, 230 Mont. at 309, 749 P.2d at 1084-85.

¶23 Glaspey was a statutory construction case addressing attorney fees in a successful action to pierce the corporate veil. No issue on appeal related to whether one entity was the alter ego of another or whether the corporate veil could be pierced. Nor was notice — the focal point of the present case — at issue in Glaspey. Thus, Glaspey does not support Hadford’s argument that notice to Big Sky in the wrongful discharge action constituted notice to the Credit Bureau and Reber.

¶24 Relying on E.C.A. Environ. Management v. Toenyes (1984), 208 Mont. 336, 679 P.2d 213, Hadford next contends that, if separate corporate entities can be proved to be identical so as to pierce the corporate veil, notice to one entity is notice to all identical entities. Toenyes does not stand for the proposition for which it is cited.

¶25 In Toenyes, a wholly-owned subsidiary and its parent corporation filed separate actions against the same defendants and the defendants counterclaimed against both corporations; the actions were consolidated for trial. Toenyes, 208 Mont. at 339-40, 679 P.2d at 215. The district court ultimately pierced the subsidiary’s corporate veil to hold the parent corporation liable on a contract. On appeal by both corporations, we considered several factors indicating that the parent and the subsidiary operated as the same entity, concluded that the subsidiary was the alter ego of the parent, and affirmed the district court’s conclusion that the parent was liable on its alter ego’s contract. Toenyes, 208 Mont. at 347-48, 679 P.2d at 218-19.

¶26 Toenyes was a straightforward piercing the corporate veil case in which both corporations were named plaintiffs and, via the counterclaims, named defendants in the action. The case did not involve any notice issue, much less the issue before us here of whether notice to one corporation constitutes notice to a different corporation for purposes of subsequently trying to bind the different corporation to a judgment. Therefore, Toenyes is of no assistance to Hadford.

¶27 Hadford further argues that, in Towe v. Martinson (D.Mont. 1996), 195 B.R. 137, 145, the federal district court held that entities can be liable on judgments against their alter egos and it is not unfair to bind one party to a judgment against its alter ego. Hadford mischaracterizes Towe.

¶28 The federal district court in Towe did not bind entities to judgments against their alter egos or determine that it is not unfair to bind one party to such a judgment. Rather, that court affirmed conclusions by the bankruptcy court that certain entities were collaterally estopped from challenging findings and conclusions in earlier cases that they were alter egos of Edward Towe. Towe, 195 B.R. at 141-42. The federal district court also affirmed the bankruptcy court’s conclusion that a third entity was the alter ego of Edward Towe and the third entity argued that it was “unfair and improper to bind Towe Farms to the findings and conclusions” of the two previous cases to which it was not a party with regard to the alter ego status of the other entities. Towe, 195 B.R. at 145 (emphasis added). Unlike the present case, Towe involved the application of collateral estoppel to prevent relitigation of an issue previously litigated. It did not involve an effort — such as that by Hadford here — to bind an alter ego to a monetary judgment obtained in an earlier action of which it had no notice of potential liability or opportunity to defend.

¶29 Finally, Hadford argues that A-Z Equip. Co. v. Moody (Ill. App. Ct. 1980), 410 N.E.2d 438, and Hughes v. Cox (Ala. 1992), 601 So.2d 465, support her argument that notice to Big Sky constituted notice to the Credit Bureau. However, those cases are distinguishable.

¶30 In A-Z Equip. Co., the Illinois Court of Appeals stated that “where a summons is served upon defendant personally, and the circumstances are such as to indicate that he is the person intended to be served, then he is subject to the judgment, even though the process and judgment do not refer to him by his correct name.” A-Z Equip. Co., 410 N.E.2d at 440 (citation omitted). That court subsequently held that service in the name of Ken Moody Masonry Company was sufficient to put Ken Moody, the sole proprietor, on notice that he was the party intended to be sued. A-Z Equip. Co., 410 N.E.2d at 440-41.

¶31 The significant differences between sole proprietorships and corporations aside, the fact remains that, in the Big Sky wrongful discharge action, Reber was served as the president — and acknowledged service as the registered agent — of Big Sky, the named defendant. This was an appropriate manner of serving Big Sky pursuant to Rule 4D(2)(e), M.R.Civ.R Nothing about that service in the name of the Big Sky corporation was sufficient to put the Credit Bureau or Reber on notice that either was the party intended to be sued. Indeed, nothing of record in this case indicates in any way that Hadford intended to sue either the Credit Bureau or Reber in the wrongful discharge action. Thus, A-Z Equip. Co. is inapplicable here.

¶32 Nor does Hughes support Hadford’s position that notice to Big Sky is notice to the Credit Bureau. There, the Alabama Supreme Court held that “a judgment entered against a trade name is a judgment against the individual doing business under that trade name. ...’’Hughes, 601 So.2d at 471. Hadford’s wrongful discharge action was not a “trade name” case, however, but an action against a corporate entity with a separate legal existence.

¶33 In summary, none of the authorities on which Hadford relies supports her theory that notice to Big Sky in the wrongful discharge action constituted notice to the Credit Bureau. Hadford having failed to establish that the District Court erred in concluding that the Credit Bureau did not receive sufficient notice of the earlier case to hold it liable on the default judgment therein, we hold that the District Court did not err in granting summary judgment to the Credit Bureau.

¶34 2. Did the District Court abuse its discretion in denying Hadford’s motion to further amend her complaint to substitute Reber as a named defendant?

¶35 On April 4,1997, Hadford moved to amend her complaint to add Reber as a named, rather than a John Doe, defendant on the theory that he was the alter ego of both Big Sky and the Credit Bureau and, therefore, liable on the debts of both corporations. The District Court observed that, as a director of Big Sky, Reber had been a “party” to the action — albeit an unserved John Doe party — since the action was commenced in September of 1995. Since no summons for any of the John Doe defendants was issued within one year of the commencement of the action as required by Rule 41(e), M.R.Civ.R, the District Court concluded that Reber could not lawfully be served in the action whether further amendment of the complaint was allowed or not. On those bases, the District Court denied Hadford’s motion to amend and dismissed the action pursuant to Rule 41(e), M.R.Civ.R, as to all John Doe defendants.

¶36 We review a district court’s denial of a motion to amend the pleadings to determine whether the district court abused its discretion. Porter v. Galarneau (1996), 275 Mont. 174, 188, 911 P.2d 1143, 1151-52 (citation omitted). We review conclusions oflaw to determine whether the district court’s interpretation of the law is correct. Rocky Mountain Ent. v. Pierce Flooring (1997), [286 Mont. 282], 951 P.2d 1326, 1340 (citation omitted).

¶37 Rule 41(e), M.R.Civ.P, provides that, if a summons is not issued within one year of the commencement of an action, the action must be dismissed. See also Sinclair v. Big Bud Mfg. Co. (1993), 262 Mont. 363, 367, 865 P.2d 264, 267 (citation omitted). In addition to named defendants, the Rule provides protection for defendants who are fictitiously named under § 25-5-103, MCA; such a defendant also is entitled to dismissal if a summons is not issued within one year of the commencement of the action. Sooy v. Petrolane Steel Gas, Inc. (1985), 218 Mont. 418, 423-24, 708 P.2d 1014, 1018. A dismissal pursuant to Rule 41(e), M.R.Civ.P., is a dismissal with prejudice. First Call v. Capital Answering Serv., Inc. (1995), 271 Mont. 425, 428, 898 P.2d 96, 98.

¶38 Here, Hadford commenced her action against the Credit Bureau and John Does I through IV, alleged to be persons who “participated in the actions referred to herein” or the last designated directors of Big Sky, in September of 1995. Summons was timely issued and served on the Credit Bureau. No summonses were issued for the John Doe defendants within one year of the filing of Hadford’s complaint in September of 1995 and, under Sooy and First Call, John Does I through IV were entitled to dismissal with prejudice of Hadford’s action against them. Since it is undisputed that Reber was a John Doe defendant by virtue of being one of Big Sky’s last directors, as the John Does were described in Hadford’s original and amended complaints herein, we hold that the District Court correctly concluded that Reber could not be lawfully served in Hadford’s action without regard to whether she was allowed to further amend her complaint to add him as a named, rather than a John Doe, defendant.

¶39 Hadford contends that she moved to further amend her complaint and substitute Reber as John Doe I on the basis of Reber’s “role as a person who participated in the actions referred to in the complaint[,]” rather than on Reber’s status as a director and alter ego of the corporations. According to Hadford, this changed her theory regarding Reber and she could have filed a separate action against Reber — and had a timely summons issued — based on this new theory. On that basis, she argues that she was entitled to amend her complaint to substitute Reber for John Doe I. We disagree.

¶40 We note at the outset that Hadford’s District Court brief supporting her motion to amend stated that her alter ego theory regarding the Credit Bureau was equally applicable to Reber, and she moved to amend her complaint to substitute Reber on that basis. Thus, her contention on appeal that she moved to substitute Reber on the basis of his individual participation is a change in Hadford’s legal theory from that advanced in the trial court. In any event, however, we noted above that Hadford’s original and amended complaints alleged that the John Does were either the last directors of Big Sky or “persons who participated in the actions referred to herein.” Thus, Reber was a “party” to the action — albeit an unserved John Doe defendant — under both allegations from the outset and no new theory was being asserted against him. The fact remains that, under Rule 41(e), M.R.Civ.P., Hadford simply waited too long to have summonses issued for the John Doe defendants, including Reber.

¶41 Hadford also points out that it was the Credit Bureau which opposed her motion to amend on the basis of Rule 41(e), M.R. Civ.P. From this, she argues that the “more proper course” would have been for the District Court to allow the amendment and then require Reber to seek dismissal. Rule 41(e), M.R.Civ.P, specifically authorizes any interested party to move for dismissal thereunder, however, and it is clear that the Credit Bureau — having defended Hadford’s action for approximately eighteen months — had a legitimate interest in opposing the motion in order to bring the litigation to an end. Moreover, extending litigation in the manner Hadford suggests, when the ultimate outcome would be the same, is a disservice to parties, counsel and trial courts whose resources are already strained.

¶42 We hold that the District Court did not abuse its discretion in denying Hadford’s motion to further amend her complaint.

¶43 As a final matter, the Credit Bureau requests this Court to sanction Hadford for filing a frivolous appeal by awarding it damages. Under Rule 32, M.R.App.P, we may assess damages if we are satisfied that an appeal was taken “without substantial or reasonable grounds!.]” See also Krause v. Neuman (1997), 284 Mont. 399, 408, 943 P.2d 1328, 1334 (citations omitted). Although Hadford’s arguments were not successful, we are not satisfied that the appeal was taken without reasonable grounds. Therefore, we decline to award sanctions against Hadford.

¶44 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER, LEAPHART, TRIEWEILER and HUNT concur.


author: MR. CHIEF JUSTICE BRANTLY

text:
    HAHN, Respondent, v. JAMES et al., Appellants.
    (No. 1,537.)
    (Submitted October 7, 1903.
    Decided October 19, 1903.)

      21ining Claim — Location — Declaratory Statement — Action to Determine Adverse Claim — Possession.
    1. In an action under Section 1310. Code of Civil Procedure, to determine an adverse claim to a quartz lode mining claim, it is error for the court to admit in evidence, over objection, tbe record on a notice of location which omits a description of the discovery shaft and a description of each corner of the claim with the markings thereon, as required by Section 3612 of the Political Code.

      2. Unless tlie record of notice.of location is in substantial compliance with the statute, the location is of no value.
    3. A locator of a mining claim, who has not filed such a declaratory statement as is required by Political Code, Section 3612, and who has not actual possession, cannot have judgment in an action under Code of Civil Procedure, Section 1310, to determine an adverse claim, though defendants have made no valid location.

      Appeal from District Court, Deer Lodge County; Welling Nap ton, Judge.

    AcxiON by Frank Hahn against John W. James and another. Judgment for plaintiff. Defend anta appeal.
    Reversed,

      Messrs. Walsh & James, for Appellants.

      Mr. H. P. Napton, for Respondent.
   MR. CHIEF JUSTICE BRANTLY

This action was brought under Section 1310 of the Code of Civil Procedure to determine an adverse claim to the Silver Star quartz lode mining claim, situate in Deer Lodge county. The complaint, alleging ownership' and right of possession in plaintiff, and that defendants assert some estate or interest therein adverse to plaintiff, prays that defendants: be required to discover the nature of their claim, and that it be declared without foundation. The answer traverses the material allegations of the complaint, and them, sets forth the facts upon which the defendants predicate their claim. The pleading discloses that they claim the ground covered by the Silver Star quartz lode mining claim by virtue of a location thereof under the name of the Venus quartz lode claim. To the answer there was reply. At the trial the plaintiff introduced iu evidence, over objection of defendants, the record of a notice of location of the Silver Star lode claim, dated January 2, 1896, together with oral evidence tending to- show a discovery of mineral deposits within the surface boundaries of the described ground, and the acts done in order to perfect his location, and then rested his case. Thereupon the defendants- ni|0¡ved for a nonsuit upon the ground, among others, that the notice was insufficient to show any right or title in plaintiff because it omitted to set forth the dimensions and the location of the discovery shaft, tunnel, or cut, or to give the location and description of each comer of the claim, with the markings thereon, as required by Section 3612 of the Political Code. After arg-umient the motion for nonsuit was denied. The defendants declining to offer any evidence^ the court directed the jury to return a verdict for the plaintiff, which wias done. Upon this verdict the court rendered judgment for plaintiff. Prom the judgment and order denying them a new trial the defendants have appealed.

The defendants assign as error the action of the court in admitting the notice of location in evidence over their objection, and in directing a verdict for the plaintiff.

The notice omits altogether a description of the discovery shaft, the only reference to- it being a statement that the claim extends along the vein or lode “1,000 feet in a southerly direction, and 500 feet in a northerly direction from the center of the discovery shaft,” and a similar statement in the attempted description of the comers. The description of the comers, with the markings thereon, so far as any is given, is as follows: “This location is distinctly marked on the ground, so that its boundaries can readily be traced, by a-- set at discovery shaft (where this notice and statement is posted this- - day of ■ — —■, A. D. 189 — ), and by substantial posts or monuments of stone at each corner of the claim and the exterior boundaries of tire claim, as marked by said ppsts o^monuments are as follows, to-wit: Beginning at southwest comer post and running in a northerly direction 1,500 feet to a post, thence in an easterly direction 600 feet to- a post, thence in a southerly direction 1,500 feet to a post, thence in a westerly direction 600 feet to-a post and place of beginning.”

The objection to the introduction of the notice in evidence should have been sustained. It attempts noi description whatever of the shaft, even conceding that such a shaft as is required by Section 3611 of tbe Political Code was sunk upon tbe claim in order to perfect tbe discovery. While tbe location of each corner is given, ib does not appear that there were any markings upon, any of them; nor is there any attempt to show their dimensions, or to, give a, description of them in any other particular by the markings thereon. It is impossible to- say what was the size, of anyi of them. The provisions of these sections of the statute were considered in Purdum v. Laddin et al., 23 Mont. 387, 59 Pac. 153, and the conclusion is there announced that a substantial compliance with them is necessary to, perfect a valid location. While all tbe other steps prior to the record of the notice may have been taken, yet, without the record in substantial compliance with the statute, tbe location is of no- value. The court erred, therefore, in admitting the copy of the notice in evidence, as well as in directing a verdict for tbe plaintiff; for tbe notice was of no- evidentiary value whatever as tending to 'establish any right or title to tbe ground in controversy in the plaintiff.

The plaintiff insists, however, that, inasmuch as evidence introduced in connection with the notice of location discloses that ■all tbe necessary stepsi to make a valid location were in fact taken by the plaintiff, including a posting of a copy of the ref-corded notice at the discovery shaft, these facts entitle the plaintiff to- a judgment, in the absence of a showing on the part of the defend-amts that they had actually entered upon tbe ground and made1 a Valid location thereof under tbe laws of tbe United States, and the statute of Montana. With .this, contention we do not agree. Assuming, for the purposes of this action, that one may maintain an action under tbe statute upon his possession alone, it is not shown by the evidence, nor is it claimed by the plaintiff, that at the commencement! of this, action he was. in the possession of the ground in controversy, nor that he had ever been ousted from the possession thereof by the defendants-; nor does it appear that he ever at anyi time had actual possession of the ground by inclosure or otherwise, except to do the annual labor of representation. At noi time, did such ppssession continue longer tban was necessary to- accomplish, this purpose. Having' failed! to comply with the statute sen as to make his constructive possession good as against any person claiming adversely to him, nothing short of an actual possessio pedis disturbed by an intruder would give him a right of action as against such intruder. Being without inchoate title to the ground, by location, and having no actual possessio pedis which could be disturbed by the wrongful actsi of the defendants, he is not entitled to- recover as against them, no matter whether they had made a. valid location of the ground or not. So long as public land's are not appropriated under the provision of some statute, or are in the actual possession! of the claimant by personal presence thereon or by substantial inelosure, they are free and open to all persons whomsoever, to be occupied or appropriated as they may wish.

Let the judgment and order be reversed, and the cause remanded.

Reversed mid remanded.


author: MR CHIEF JUSTICE, BRANTUY,

text:
    KING et al., Respondents, v. ALLEN et al., Appellants.
    (No. 1,655.)
    (Submitted October 9, 1903.
    Decided October 26, 1903.)

      Gosts — Memorandum ■ — ■ Items — Prima Facie Case — Gosts of Inspection and Survey of Miming Property — .Evidence— 'Order Disalloiuing Gosts — Appeal.
    No appeal lies from an order taxing costs.
    Where a statute or rule of court requires a party claiming costs to serve a verified memorandum thereof on his adversary, and file the same with the clerk, such memorandum is prima facie evidence that the items were necessarily expended, and are properly taxable, unless, as a matter of law, they appear otherwise on their face.
    The burden of proof of overcoming the prima facie evidence as to taxable costs established by filing memorandum of costs is on the adverse party.

      4. under Code of Civil Procedure, Sections 1866, 131T, fees paid a witness testifying on the hearing for an order of inspection and survey, fees paid . a witness at the hearing of an order to show cause, fees for summoning such witness, and the expense of preparing a map, are prima facie proper items of costs.
    5. where the court allowed, as costs, a fee paid to a witness called to testify in a proceeding, it should also have allowed the sheriff's fee for summoning the witness.
    6. A finding that an inspection and survey was necessary to enable a party to properly present his case was an adjudication of costs attendant on procuring the order for the survey.
    7. Whether the expense of mating a map was reasonable or necessary to facilitate a hearing upon an injunction proceeding is a question of fact, in reference to which the court, in taxing costs, should admit all competent evidence, including testimony of witnesses explanatory of what the map was intended to show, their statements as to whether it actually represented the facts intended to be shown by it, the map itself, and testimony as to its reasonable, cost.

      Appeal from District Court, Silver Bow Countyj John Lmd-say, Judge.

    ActioN by Silas King and others ag’ainst John Allen and others. From a judgment for defendants for costs* and from an order disallowing certain items of costs; defendants appeal.
    Never sed.
    STATEMENT OE THE CASE.
    Thei purpose of this action was to recover a judgment for damages for trespasses alleged to have- been committed by the defendants by entry upon exterior portions of the Silver King lode, the property of the plaintiffs, and the. removal therefrom of large quantities of valuable ore. Equitable relief wias also sought by injunction to restrain- further trespass pending the litigation, and perpetually upon final hearing.
    T]re principal issue involved was the title to certain ore bodies found beneath the surface of the Plymouth lode claim, lying to the south of plaintiffs’ premises, the Silver King lode claim, the plaintiffs alleging that such ore bodies are upon exterior portions of a vein having its apex within their boundaries. Upon thei filing, of the complaint the court issued an order to showi cause why an injunction pendente lite should not issue. This order also- restrained the mining operations1 of the defendants until a hearing could be had. Meantime the defendants applied for and the court granted an order permitting them to inspect and survey the workings beneath the surface of the Plymouth lode claim, in order that they might be enabled to present at the hearing the facts touching the matters in controversy. The survey was made, and a map prepared by defendants’ ehgineer, showing the underground workings and a cross-section of the ground in controversy. Before the hearing was had, however, the court dismissed the action upon plaintiffs’ request, and directed judgment in favor of the defendants for their necessary costs and disbursements, accrued up to the date of dismissal. Within the time provided by the statute (Code of Civil Procedure, Section 1867) the defendants served upon the plaintiffs and delivered to the clerk their memorandum, of costs, properly verified, in order that such costsi might be included in the judgment. The items mentioned in the memorandum, other than clerk’s fees, about which there is no controversy, were $3, a fee ¡paid' a witness who testified at the hearing for the order of survey ; a fee of $3 paid to a witness called! to testify at the hearing under the order to show cause; $1 paid the sheriff to summon this witness; and $110, the expense of preparing the map. The plaintiffs' thereupon moved the court to disallow all these items, upon the ground that they were not lawfully taxable as costs. The motion stated that it was to be based upon the record and the files in the cause and upon evidence to be; adduced at the hearing. At the hearing the plaintiffsi assumed the burden of proof. The defendants offered no evidence: TJpon the evidence produced by the plaintiffs the court made an order disallowing all the items'complained of except the fee paid to the witness called for the injunction proceeding, and directed judjgment to be entered accordingly. The defendants have appealed from the judgment. They have also attempted to1 present the questions involved by an appeal from the order.

      Mr. C. P. Drennen, and Mr. Jolm J. Mediation, for Appellants.

      Mr. P. N. Harwood, and Messrs. McBride & McBride, for Respondents.
   MR CHIEF JUSTICE, BRANTUY,

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

No appeal lies from an order taxing costs. (Montana, Ore Purchasing Co. v. Boston & Montana C. C. & S. M. Co., 21 Mont. 288, 10 Pac. 1114; Murray v. Northern Pacific Ry. Co., 26 Mont. 268, 61 Pac. 625.) The attempted appeal from the order must therefore be dismissed. The appeal from the judgment, however, properly presents for review the controversy of the parties, and the action of tire district court thereon.

Contention is made by the appellants that the memorandum. filed by them with the clerk of the district court, was prima facie evidence of the correctness of the various items set forth therein as necessary costs and disbursement and that the district court erred in not directing judgment for the whole amount claimed.

The rule is well established by the authorities that where, • under a statute or rule of cour^ a requirement is made that, in order to recover costs; the party claiming them must, within a specified! time, serve upon his adversary and file with the clerk a memorandum of the items thereof, duly verified, such memorandum! is prima facie evidence that the items were necessarily expended, and are properly taxable, unless, as a matter of law, they appear otherwise upon the face. The burden of overcoming this piñma facie case rests upon the adverse party, and the party filing the memorandum is required to furnish further proof only in rebuttal. Hence upon the. trial of a motion to tax costs, if the adverse party does not overturn the prima facie caise made by the verified memorandum, the objection should' be overruled. (Hibbard, v. Tomlinson, 2 Mont. 223; Elliott v. Collins, 6 Idaho; 157, 53 Pac. 453; City and County of San Francisco v. Collins, 98 Cal. 259, 33 Pac. 56; Barnhart v. Kron, 88 Cal. 447, 26 Pac. 210; Colusa Parrot M. & S. Co. v. Anaconda. C. M. Co. (C. C.), 104 Eed. 514; Fitnam’s Tr. Pro. Sec. 669.)

Under the statute (Code of Civil Procedure, Section 1866) all the items called1 in question could properly be taxed, because this section, besides providing for the fees of witnesses and other disbursements, provides also. for “the reasonable expenses for making’ a map or maps if required and necessary to be used on trial or hearing, and such other reasonable and necessary expenses as. are taxable according to the course and practice of the court, or by express provision of law.” By an. express provision of law (Code of Civil Procedure, Section 1317) the costs of procuring an order of survey abide the result of the action, and are taxable against the losing party. If, therefore, no evidence at all had been introduced at (he hearing, the defendants would have been entitled to have all the items included in their judgment. The plaintiffs having assumed the burden, however, we must examine the record with this condition in miñd, and determine whether, as a matter of fact, the item) should have been taxed as -necessary disbursements, or ■whether, upon this theory, the court erred in reaching the conclusion it did

As has been said, the issue in the case upon the pleadings was as to the ownership of a, vein or lode and tire extent of the alleged trespass of the defendants. The complaint described the Silver Xing claim and the locality of the trespasses in general terms. The restraining parti of the orderg to- show that the survey was. necessary, and that a ma,pl was required to enable the witnesses to make intelligible to the court- their testimony touching the physical and geological facts as, they understood them. The map- itself was. offered in evidence, in connection with the testimony of the witnesses, in order that the court, might determine whether or not its use at the hearing would have been, necessary. Evidence was also- offered to. show thei reasonable cost of making the map. The court, upon objection, excluded all the evidence offered, except the fact that the map had been, made by the engineer of tbe defendants, and that it represented all the underground workings involved in the controversy. No. evidence was offered or introduced touching the item of $1 paid the sheriff for serving the subpoena, nor was any offered upon the item of $3 paid to> the witness who testified at the hearing for the survey ordter. It is manifest that if the court was justified in allowing the $;3 paid to the witness called to testify at the injunction proceeding, the fee paid to the sheriff for summoning this witness should also have been allowed. It is equally clear that when the court found upon the application for the survey order that the survey was necessary in order to enable the defendants to properly .present their case to the court, this was an adjudication of the costs attendant upon procuring the order, and the court was in error in disallowing the fee of $3 paid to the witness who* testified! on that hearing. ‘Whether or not the expense of making the mapi was reasonable or necessary in order to facilitate the hearing, upon the injunction proceeding was a question of fact, and upon the theory upon which the matter was presented to the court by the defendants, the court should have admitted all competent evidence tending to throw light upon thisi question. This would include the evidence of witnesses explanatory of what the map was intended to show, as well as their statements as to whether it correctly represented the facts intended; to be shown by it. In connection with this it was clearly competent to introduce the map itself, and also the testimony of witnesses tending to- show what was the reasonable cost of making it. It is inconceivable how the court could reach a just conclusion u,ppn the question under investigation without hearing and weighing this testimony, and it was clearly error to exclude it. The court evidently proceeded upon the erroneous idea that the burden was upon the defendants, and that, having failed to' show that these items were all necessarily expended in preparation for the hearing, they were not entitled to' be reimbursed.

Reference is made in the brief of counsel to rulings of the court upon particular parts of the evidence excluded. We shall not attempt to' notice these in detail. What we have already said we deem sufficient to guide the court in another hearing.

The judgment is reversed, and the cause is remanded, with directions toi the district court to proceed in, accordance with the views herein expressed.

Reversed and retnanded.


author: ME. JUSTICE' MILBURN

text:
    In re THRESHER.
    (No. 1,841.)
    (Submitted July 13, 1903.
    Decided October 26, 1903.)

      Attorney and Client — Retention of Funds — Disbarment.
    1. An attorney for an administratrix bad no right to retain from funds collected for her an amount claimed by him to be due to him from her decedent.
    2. The retention of funds for such purpose does not merit so severe a penalty as that of disbarment, in the first instance.
    APPLICATION for the disbarment of B. S. Thresher.
    Dismissed.

      Mr. Thomas A. Monim, for Complainant.
    ' An individual debt of administrator cannot be set off against a, debt due the estate. (Vol. 11, 2d E’d. Am & Eng’. Ehcy. Law, 931.) If the accused was owing a debt to the) estate he could not set it off against a personal claim against Mrs. Van Duesen. If deceased owed him, he could not take money collected and pay himself.
    It was the duty of the adlministratrix to> proceed with collection of assets, notifying creditors^, etc., and distribution of estate. The accused was employed to assist in this work, but; neglected toi proceed with the administration and attempted to hold on, on some pretext or1 other', to all the money passing through his hands. For this he should be disbarred. (In re Burris, 36 Pac. 301; In re Treadwell, I Pac. 124.)

      Deceit is ground for disbarment. (Sec. 402, Code of Civil Procedure.) Deceit is, defined in Section 2292 of the Civil Code of Montana.

      Mr. B. 8. Thresher, in propria persona.
   ME. JUSTICE' MILBURN

delivered the opinion of the court.

On the 9th day of July, 1902, there was presented in this court an accusation in writing’, verified by the oaths of one James Sullivan and one Jane D. Nan Duesen, respectively, charging B. S. Thresher, an attorney and counselor at law of the courts of Montana, with certain acts involving deceit, fraud and moral turpitude, in violation of his duties as such attorney and counselor at law. The complaint containing the accusations was made by James Sullivan, and contains six counts. The accused duly appeared, and made certain objections in writing to all of the count® excepting the sixth, declaring as to •each of the five counts that “it did not state facts sufficient to' show deceit, fraud or malpractice on the part of the accused.” As to the fourth count, the accused further objected on the ground that it did not statei facts sufficient to show* that he had ever been convicted of any offense in any court. The. court, upon consideration, overruled the accused’s objections.to the first and fifth counts, and sustained those made by him to the. second, third and fourth counts. The writer hereof, for reason® contained in Ms concurring opinion in In re Weed, 26 Mont. at page 516, 68 Pac. 1115, dissented from the order overruling the objections to the fifth count. It is unnecessary in this opinion to state tiie matters referred to' in the counts which were stricken out. Thresher appeared before the referee, to whom this court referred the matter for the purpose of taking testi-m|ony, and testified in his. own behalf, denying each of the charges made.

The first count charges the accused with unlawfully withholding from said Sullivan the sunn of $'4S.50, money alleged to. have been collected for him by Thresher as. his attorney.

The fifth, count charges that the accused unlawfully withheld and appropriated to his own use the, sum of $115.80, received by him, from Mrs. Van Duesen, this sum having been turned over to him by her withi instructions toi forward it to the Masonic Relief Board of Los Angeles, Cal., to pay for the transportation of the body of her deceased husband, and to release and obtain possession of certain pieces of jewelry said to be held by that board pending the repayment to it of money advanced for such transportation and other expenses incident to the illness and death of her husband.

The sixth count charges him with unlawfully appropriating to his own use the sum, of $15, collected by him from one J. E. IConen upon the compromise of a judgment debt of $500 against said Konen, the accuser alleging that said Thresher, without any authority so to do, agreed to, receive $200 from IConen in full of said judgment; and, further, that Thresher continued for a long time to misrepresent the facts in the case to Mrs. Van Duesen, in that he stated that an execution had been issued under said judgment, and that the1 property of the judgment debtor had been sold under execution, and bought in for the estate of her deceased husband, when in fact no execution had ever been issued.

As to’ the first charge it is sufficient to’ say that it does not appear to us that the accused isi guilty as charged. It is apparent from the evidence that the accuser is not a credible witness. We therefore find Hie said Thresher, as to this count, not guilty.

As to the second of the remaining counts, to-wit, the one numbered 5, we find from an examination of the evidence that the said Thresher was acting in a dual capacity,. His first connection) with the matter of the expenses incident to’ the illness and death of said Van Duesen arose from his being a member of the fraternal order to which the Masonic relief board is an adjunct. There were numerous compnunieations in writing between the said board and Thresher, and, after the sum of $115.80 was turned over to him by Mrs. Van Duesen to* be forwarded to Los Angeles-, there were several interviews between her and him, in one of which she demanded the return of said sunn to her, she saying’ that she wished to- use it for an entirely different purpose. It appears1 that the members of the society of which the deceased had been a member had expended a sum of money largely in excess of the $115.80 for care of the deceased during his illness and in making arrangements for the transportation of the body to his late home. It seems reasonable to believe that Thresher retained the money in his possession, for at least part of the time, because there was delay in the delivery of certain articles of value belonging to deceased and in possession of the relief board in California. Negotiations between the board and the accused not having resulted in the delivery of the property to him, or in the payment of the money to it, Daniel Yancey, Esq., an attorney at law in Butte, Mont., was employed byi the board to procure the payment of said $115.80, and to deliver the articles of property to the proper person. Upon identification of the articles within a reasonable time, and upon demand made u,ppn the accused, the money was paid by Thresher to- Yancey. Some questions o-f veracity arose between the parties in California, Mr. Thresher and Mrs. Yan Duesen. After full consideration of the evidence in the case, we cannot say with any reasonable degree of certainty that the accused was at any time guilty of having unlawfully converted to his own use the said sum of $115.80, or any p-art thereof. The evidence is not sufficient to show any moral turpitude on the part- o-f Mr. Thresher in the premises-.

The accused was the attorney of Mrs. Yan Duesen in the matter of the settlement of the estate of her deceased husband, she being the administratrix. The aforesaid Konen, according to the testimony, appears to have owed the estate between five and six hundred dollars The administratrix, according to her testimony, authorized her attorney to settle with the debtor for $500, if he could do so, but, if not, to cause execution to is-su-e, and the property to be sold. On the property in question appears to have been a mortgage lien of $450, the premises being worth, according to the testimony of the debtor, the sum of $900. Thresher had been legal counsel for the deceased in. his lifetime, and, as he says, had a claim against the estate for services rendered. Mrs. Yan Duesen testified that Thresher promised to> perform the necessary legal services for her for a fee not to exceed $35 or $40. The daughter of Mrs. Yan Duesen testified that she heard Thresher say that he did not suppose Konen . would pay, and the only thing to do was to sell the property at sheriffs sale; that her mother ashed him, if Konen had paid anything, to which he replied “No”; that this was some time in September or October, 1901; that he said the only thing to do was to sell the, place; and her mother replied that she did not like to take a man’s home away from him, but she needed the money, and that she told him to pursue whatever course he thought best. Konen testified that he paid $75 to Thresher on or about the 13th day of June; 1901, but that it was paid at different times. It appears also that there was an agreement between. Thresher and Konen to' compromise the judgment debt for $200, but the property should not, be released from the judgment unless the said sum of $200 should be paid in full. It ap,p:ears, as above stated, that only $75 was paid. Thresher did not pay anyi part of the $75 to> the administratrix, claiming that he had earned that sum, or more, as counsel for the deceased and for the administratrix. Of course, it would be irregular for any- attorney to' withhold from the administratrix money collected by him for the estate on the plea that the deceased, in his lifetime, had become indebted to him. His only course in such a case would be to pay the money over to' the administra-trix, and to put in his claim against the estate in) the manner and form provided by law for the filing of claims against an estate.

The accused testified that Mrs. Yan Duesen said that she thought she ought to be able to realize $500 on the judgment debt; that he stated! that that was impossible; that the property was, not worth it; that it might be possible to sell the property under the, hammer for $750 or $800, and that it might not sell for inore than the mortgage and' other claims; and that she told him to da" whatever he thought best, and to realise what he could out of it, but that she thought they ought to- pay the entire judgment; that he said it wasi simply a question as to what could be realized; that soon after judgment the debtor came into' his office, and wanted to know what he could do about the judgment, saying that he never could pay it; that, if the creditor should “take his home,” nothing would be realized on it. After considerable discussion an understanding was reached that he wasi to pay $>200' at the rate of $25 per month, and, in case he did not make all of the payments as- agreed, anything that he did pay should simply apply on thej judgment. The accused admits having, received $75, and thinks that the last payment wasi made some time in September, and testifies- that he reported the full facts to. the administratrix as to what the agreement was; and that she said that that was as good as could be done in the. matter.

While we cannot approve of an attorney collecting his own-claims against an estate by withholding money collected by him for the estate without having first filed his claim in accordance with the; law, and having had the same approved and allowed! as- the law provides, and without having received permission from the administratrix pursuant to an order o-f the court to retain the money, still we do not believe such conduct calls, in the first instance, for soi severe a penalty as disbarment. Considering all the conflicting testimony and the fact that the testimony of the administratrix seems in a measure to- corroborate the statement of Mr. Thresher that he should db as he thought best in the matter of bringing about a compromise with the judgment debtor, we cannot say that his conduct in thus negotiating with Mr. Konen with, a view to- a settlement was reprehensible'.

It does not appear, in res-peot of any of the three charges considered that the accused is guilty as. charged, in any one of them, and therefore these proceedings are ordered dismissed.

Dismissed.


author: ME,. JUSTICE HOLLOWAY, Mr. Justice MilbueN:

text:
    TALBOTT et al., Respondents, v. BUTTE CITY WATER COMPANY Appellant.
    (No. 1,256.)
    (Submitted October 6, 1903.
    Decided October 26, 1903.)

      Water Rights — Appropriation—Adverse User — Landlord and Tenant — Estoppel—Instructions.
    1. On an issue as to tlie rights of plaintiffs and defendant in the waters of a certain creek, plaintiffs alleged that defendant had leased the waters from them, and was estopped from claiming any adverse rights until the expiration of five years from the termination of the tenancy. Defendant claimed by adverse user. The testimony showed that, if the relation of landlord and tenant had ever existed, it was only for a few days, when the water was turned back to plaintiffs, and the relationship terminated. The court instructed the jury that, if the relationship of landlord and tenant had existed, there could be no adverse possession until the expiration of five years from the termination of the tenancy. Held, that the instruction was erroneous, as* Compiled Statutes 1887, Section 37, does not apply after the tenant delivers up possession, but only where the tenant is holding possession of the property obtained under the lease.
    2. The court having admitted all testimony, and the cause having been one in equity, the error was harmless."
    where a cause has been treated in the trial court as an equitable action, neither party can, on appeal, assume a position antagonistic to such theory.
    4. Since the findings of the jury in a cause in equity are merely advisory, errors in instructions are harmless.
    íí. No use of water by a subsequent appropriator can be said to. be adverse to the right of a prior appropriator unless such use deprives the prior appropriator of it when he has actual need of it.
    0. The use of water may ripen into a right by adverse user. (Me. Justice Milbuisx dissenting.)

      Appeal from District Gowrt, Silver Sow County; John Lindr say, Judge.

    ActioN by Jamies. A. Talbott and others against the Butte City Water Company. From a judgment for plaintiffs, and from an order denying a new1 trial, defendant appeals.
    Affirmed.
    Statement oe the Case.
    This action was brought by the plaintiffs (respondents) to secure a decree of the court, settling the relative rights of the parties to the use of the waters of the Black Tail Beer creek, in Silver Bow county, Montana, to tave the defendant restrained from diverting the waters of such creek from its natural channel, and for damages alleged, to* have heen caused by the acts of the defendant in depriving the plaintiffs of the use of the waters to which it is claimed they were entitled.
    The plaintiffs Talbott and Thompson claim to be the prior appropriatorsi of aE the waters of Black Tail Deer creek, as against any claim of the defendant; and the plaintiff Bbyce claims to be the prior appropriator of 150 inches of such waters; as against any claim of the defendant. The plaintiffs further allege in their complaint that in 1886 the Basin Flume Company, the predecessor in interest of this defendant, leased the use of the waters of Black Tail Deer creek front this' plaintiff Talbott and one Olin, the predecessor in interest of the plaintiff Thompson; that thereby the relationship’ of landlord and tenant was created; and that the; defendant herein isi estopped from claiming any right adverse to the plaintiffs Talbott and Thompson until the expiration of five years from the termination of such tenancy.
    The defendant answered, denying the; allegations of the complaint, and alleging that, if the plaintiffs ever had any right to the use of such waters, that right had been lost by abandonment prior to' the commencement of this action, and pleading affirmatively, first, that it is the prior appropriator of all the waters of Black Tail Deer creek; and, second, that prior1 to- the commencement of this action it had acquired title to the use of all the waters of said creek by adverse user.
    The cause was tried to the court and jury, and numerous special interrogatories were submitted to the jury, and hy them answered. Upon the trial the court, among others; gave, at the request of the plaintiffs, instructions numbers 1 and 8, which read as follows: “No: 7. The court instructs the jury that, when the relation of landlord! and tenant has existed between any persons, the possession of the tenant is deeiped the possesr sion of the landlord, until the expiration of five years from the termination of the tenancy, or where there has been no. written lease, until the expiration of five years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title* or may have claimed to hold adversely to his landlord; but such presumption cannot be made after the periods herein limited. Bo. 8. The court instructs the jury that if they find from the evidence that the relation of landlord and tenant* as to the waters of Black Tail Deer creek, existed between Olin and Talbott, as owners, and the Basin Flume Company, as tenant, in the year 1886, as alleged in plaintiffs’ complaint, then there¡ can be no disseisin or adverse possession by the said Basin Flume Company, or by any party succeeding to- the possession, of said company, until the expiration of five years from the termination of said tenancy, or, if there was no written lease, until' the expiration of five years from the time of the last payment of rent, if rent for the use of the waters of Black Tail was paid”. — andl at the request of the. defendant gave an instruction, numbered 6, which reads as. follows: “No. 6. You are instructed, that where one who claims, by reason of adverse possession entered as tenant, but afterwards, returned the leased property- and thereafter re-enters and hold© adversely for the period of five years* that said re-entry and adverse holding vest the title in the claimant, and! that the period of adverse possession begins to run at the day of said re-entry, if the reentry is hostile and adverse to the interest of the real owner.”
    All the special interrogatories, were answered in favor of plaintiffs* and the jury found that the plaintiffs had been damaged in the¡ sum of $1,073. The defendant afterwards stipulated- that the evidence is sufficient toi sustain that finding, but particularly disclaimed liability for the damages. Tho court adopted the findings of the jury, and entered a decree in favor of the plaintiffs, adjudging the plaintiffs Thompson and Talbott entitled toi the use of all the waters in Black Tail Deer creek appropriated in 1869, and the plaintiff Boyce entitled to> the use of 150 inches thereof appropriated in 1879, and that each of these appropriations is prior and superior to any right of the defendant to the use of any of the waters of said creek. From tbisi decree, and the order denying the defendant a new trial, these appeals are prosecuted.

      Mr. J. B. Boole, and Messrs. Forbis & Evans, for Appellant.
    This ease ivas tried on a. wrong theory; the landlord and tenant theory was entirely foreign to the issue joined, the permission of Olin to the diversion and use of the water by the Basin Munie Company, was only an, easement, and the relation of landlord and tenant could not, and cannot, under any conceivable state of facts, exist between any parties with respect to an easement. (Swift et al. v. Goodrich el al., 'TO Cal. 103; Angelí on Watercourses, Sec. 8; Carrey v. Daniels, 5 Mete. 238; Critten-don v. Alger, 11 Mete. 284; 1 Wash. Eeal Prop-. 310; Taylor on Land, and Ten. Sec. 699; Bing. Eeal. Prop. 17; Tyler v. Willcenson, 4 Mason, 400; Stein v. Burden, 29 Ala. (N. S.) 127, Sv c. 24 Ala. (N. S.) 130; Burden v Stein, 27 Ala. (N. S.) 104; 2 Black. Com. 14 and 18; 3 Kent Com.( 3d Ed.) 434, 439, 441; Civil Code of Napioleon, Art. 640 ; Hazard v. Robinson, 3 Mason, 277; Civil Code of Montana, Secs. 1250, 1251.)
    The question might naturally arise,- — can this court consider this question, raised for the first time on appeal, and not hitherto having been broached, nor even thought of? Again, will this court permit a change of front at this, late date ? Has not the appellant, by its participation in the error complained of, waived its right to- raise the. question now- ? And is it not estopped from doing so? -And is it guilty of a breach of faith in this radical change of front? We think all of these questions, are satisfactorily answered by the following cases,: Wiggins Ferry Co. v. O. & M. By-, 142 IT. S. 396; Hubbard v. Sullivan, 18 Cal. 525; Ward v. Craig, 87 N. T. 550; Kenner v. Creditors, 8 Martin (N. S.) La. 51; Watts v. Waddle, 6 Pet. 389; Walden v. Bodley, 14 Pet. 156; Neale v. Neales, 9 Wall. 1; Handin v. Boyd, 113 IT. S. -765 ; and see, also-, Hayne on New Trial & Appeal, Sec. 279; Code of Civil Proc. See. 21; 2 Einov. PL & Pr. 372.

      Tbe appellant acquired title to> the water in dispute by prescription. (Hesperia L. & W. Go. v. Rogers, 83 Cal. 10; Union Water Company y. Crary, 25 Cal. 501; Woolman v. Garringer, 1 Mont. 544; Davis v. Gale, 32 Cal. 35 ; Evans v. Boss, 8 Pac. 88; Bealy v. Shaw, 6 East. 208; Balston v. Bensted, 1 Camp. 463; Richard v. Williams, 7 Wheat. 59; Williams v. Nelson, 23 Pick. 141; Calvin v. Burnett, 17 Wend. 564; Hammond v. Zehner, 23 Barb. 473; Campbell v. WiZso», 3 East. 294; Tyler y. Wilhenson, 4 Mason, 397; Gallagher y. WaZer Co., 35 Pac. 770; Comp. Stats. Mont. 1887, Secs. 29, 30, 32, 33; Smith v. Logan, 1 Pae, 678; Lw v. Haggim, 4 P'ac. 919; Spargur y. Heard, 27 Pac. 198; Jatunn v. Smith, 30 Pac. 200; Huston y. Bybee, 20 Pac. 51; WaZer Co. y. Richardson, 14 Pae. 379; Arthurs y. Bryant, 38 Pac. 439; Smith v. Greene, 41 Pac. 1022; Humphreys v. Blasingame, 37 Pac. 804; Richard v. Hupp, 37 Pae. 920; Cowell y. Thayer, 5 Mete. 253, s. c. 38 Am. Dec. 400; Messenger’s Appeal, 109 Pa. St. 290; Garrett v. Jaclcson, 20 Pa. St. 331; Swift v. Goodrich, 70 Cal. 103, s. c. 11 Pac. 561; 28 Am. & Eng. Eney. of Law, 1002 eZ seg'.; Bolivar Mfg. Co. y. Neponsei Mfg. Co., 16 Pick. 241; Lehigh Valley R. Co. v. McFarlan, 43 N. J. Law, 62S; Powers v. Osgood, 102 Mass. 454; Cornwell v. Swift, S9 Mich. 503; BaZZ v. Swift. 4 Bing. N. Cas. 381; Gerenger y. Summers, 2 Lnd. (N. C.) 229 ; Angelí on Watercourses, 362; Perrin v. Garfield, 37 Vt. 310; Gale and AVhat. on Easements, 84; Alta Land & Water Co. y. Handcoclc, 85 Cal. 219; Davis v. GaZe, 32 Cal. 26; Ann Co. y. Bradford, 27 Cal. 3 61; 3 Kent Com. 441 to 446; Shaw y. Crawford, 10 John. 236; Johns v. Stevens, 3 Vt. 316; Crandall y. Wood!s, 8 Cal. 136; CAu v. Clough, 70 Cal. 345 ; if aso» y. Hill, 3 Barn & Adolph, 304; Buddmgton y. Bradley, 10 Conn. 213; Baldwin y. Callcins, 10 Wend. 167; Barbour v. Pierce, 42 Cal. 657.)
    Messrs. McBride & McBride, for Respondents.
    The attempted defense of action, barred and of adverse possession, are entirely untenable and without merit in this action. (Anhei/m- Water Co. v. Semi-Tropic Water Co., 64 Cal. 192; Mining Co. v. Perris, Eed. Cases No. 14,271.)

      • “The words ‘land’ or ‘lands’ and tbe words ‘real estate’ shall 'be construed to include lands, tenements and hereditaments and all rights thereto and all interests therein.” (Sec. 145, Subd. 5, Revised Sta.t.>of .1879; Sec. 202, Subd. 5, page 648, Compiled Stat. of 1887.)
    “Easements” are held to be within the term “land” in the following eases: 'Farmers’ L. & T. Go. v. Ansonia, 61 Conn. 85; State v. Railroad Gornfrs, 56 Conn. 308; New Haven v. Fair Haven, etc. R. Go., 38 Conn. 430; Ray v. Sweeny, 14 Bush (Ky.) 1; Freeholders v. Red Bank, etc. Turnpike Go., 18 N. J. E!q. 91; Brower v. Tichenor, 41 N. J. L. 345; White-river Turnpike Go. v. Vermont Central R. Go., 21 Vt. 597; Boston Water Power Go. v. Boston, etc. R. Corp., 23 Pick. (Mass.) 395; Filis v. Welch, 6 Mass. 246; Parks v. Boston, 15 Pick. (Mass.) 203.
    Ejectment will lie to recover a ditch and water rights. (Integral Q. M. Go. v. Altoona Q. M. Go., 75 Eed. 380, 382, 383 and 384; Reed v. Spicer, 27 Cal. 58; Canal Go. v. Kidd, 37 Cal. 282; Mitchell v. Mining Go., 75 C'al. 464, s. c. 17 Pac. 246.)
    The ditch and water right were certainly the subject of lease and the relation of landlord and tenant could exist as to such property. (Integral Q. M. Go. v. Altoona Q. M. Go\, 75 Eed. 380; Reed v. Spicer, 27 Cal. 5; Ganal Go. v. Kidd, 37 Cal. 282; Mitchell v. Mining Go., 75 Cal. 464, s. c. 17 Pac. 246; Sec. 145, Subd. 5, Revised Stat. of 1879; Sec. 202, Subd. 5, page 648, Compiled Stat. of 1887; Farmers’ L. & T. Go. v. An-sonia, 61 Conn. 85; State v. Railroad Gom’rs, 56 Conn. 308; Neiu Haven v. Fain Haven, etc. R. Go., 38 Conn. 430; Ray v. Sweeney, 14 Bush. (Ky.) 1; Freeholders v. Red Bank, etc. Turnpike Go., 18 N. J. Eq. 91; Brower v. Tichenor, 41 ,N- K L. 345; Whiteriver Turnpike Go. v. Vermont Gentral R. Go., 21 Vt. 597; Boston Water Power Go. v. Boston, etc. R. Gorp., 23 Pick. (Mass.) 395; Ellis v. Welch, 6 Mass. 246; Parks v. Boston, 15 Pick. (Mass.) 203.)
    Even if, under the facts as disclosed by the record of this case, the relation existing between Ólin and Talbott and the Basin Flume Company technically was incorrectly designated as the relation of landlord and tenant, the appellant not having raised the question in the district court, but on the contrary having given testimony and; ashed instructions on the theory that such relation existed, will not be heard to complain of the action of the district court in acquiescing in and acknowledging the existence of such relation conceded to exist by both plaintiff and defendant. (Davis et al. v. Jacoby, 55> N. W. Rep. 908; Leavenworth N. & 8. Go. v. Curtan, 33 Pac. 297.)
    The supreme court will not review an error of law not raised in the district court. (Tuttle v. Merchaoits’ NatT Bank, 19 Mont. 11.)
    Use of water by a subsequent appropriator at times when the ■water is not needled by a prior appropriator will not ripen into a prescriptive title. (Bong on Irrigation, Sec. 90, plage 159; Union Mill. <& Min. Co. v. Ferris, 2 Savvy. 176; Anheim Water Co. v. Sémi-Tropic Water Co., 64 Cal. 185; Lakeside Ditch Co. v. Crane, 80 Cal. 181; Jensen v. Hunter, 41 Pac. 14, 16, 17; Faulkner v. ILodoni, 37 Pac. 883, 886; Smith v. Hope M. Co., 18 Mont. 442; Hargrave v. Cook, 108 Cal. 72, 41 Pac. 18.)
    “No adverse user can be initiated until the owners of the water right are deprived of the benefit of its use in such a substantial manner as to notify them that their rights are being invaded.” (.Bowman v. Bowman (Ore. 1899), 57 P'ac. 546; Boyce v. Cupper (Ore. 1900), 61 Pac. 642.)
    “Prom these principles it follows, that no prescriptive right, to water can be acquired by the use thereof by: permission or sufferance of the owner, who> continues to exercise domain over it.” (Crawford v. Minnesota & M. Land <£• Imp. Co., 15 Mont. 153, 3S Pac. 713; Egan v. Estrada (Ariz. 1899), 56 Pac. 721; Bathgate v. Irvine (Cal. 1899), 58 Pac. 442.)
    “So, also, where there is sufficient water in the stream to supply the wants and demands of all the parties., its use by one cannot. be an invasion of the rights of any other, and hence cannot be the foundation of any prescriptive claim’.’ (Egan v. Estrada (Ariz. 1899), 56 Pac. 731; Anheim Water Go. v. Semi-Tropic Water Co., 64 Cal. 185, 30 Pac. 623; Olmrck v. Stillwell, 12 Colo-. App. 43, 54 Pao. 395; North Powder Milling Go. v. Gonghanour (Ore.), 54 Pac. 223.)
   ME,. JUSTICE HOLLOWAY,

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

Only two questions are discussed in the brief, and only those will be considered:

(1) Did the trial court err in its instructions- to the jury, and, if so-, was the error prejudicial? (2) Did the defendant establish a right to the use of the waters-of Black Tail Deer creek by adverse user ?

It is contended that the court erred in its instructions with reference to the question of the relationship- of landlord and tenant, alleged to have; existed between thei Basin Flume Company, predecessor in interest of tire defendant water corn-company, and Olin. and Talbott, predecessors- of Talbott and Thompson, two of the plaintiffs.

Instruction No. S, above, given at the instance of the plaintiffs, and No. 6, above; given, at the instance of the defendant, are absolutely contradictory. Section 37, First Division, Compiled! Statutes- of 18S7, is copied in instruction No. 7, above. The construction given this section by the court in instruction No. 8, above, is clearly erroneous. The section deals with the question of possession, while the instruction erroneously applies the doctrine to- the relationship of landlord and tenant. Under that section, so long as the tenant is holding possession of property obtained from his landlord while the relationship of landlord and tenant exists, the- doctrine of the section applies; but, as soon as the tenant delivers up his possession and the relationship is fully terminated, the section ceases to- have any application, and an adverse holding can therefore be immediately initiated by a hostile re-entry into such possession.

The testimony shows that, if the relationship of landlord and tenant ever existed at all, it existed only for a few days in 1886, when the water was turned back to* the predecessors of plaintiffs, and the relationship! fnl-ly terminated.

However, that error is Avithout prejudice in this instance, for, notwithstanding such, instructions, the court had admitted all the testimony offered on behalf of the defendant tending to prove its adverse user; at least, no complaint is hero made that any testimony offered in that behalf Avas excluded. The matter AA-as treated in the district court throughout as a suit in equity. In fact, the opening’ statement in appellant’s brief is, “This is an equitable action.” And Avithout disposing’ of the question Avhether in fact it is an action at law, or a suit in equity, it is sufficient to say that when a cause has been, tried upon a certain Avell-defined theory, neither party Avill be heard in, this court, on oral argument, for the first time, to assume a position antagonistic to such theory. (Harris v. Llloyd, 11 Mont. 390, 28 Pac. 136, 28 Am. St. Rep. 475; Leavenworth N. & S. Co. v. Curtan, 51 Kan. 432, 33 Pac. 297; Davis v. Jacoby, 54 Minn. 144, 55 N. W. 908.) .

Assuming, then, that the cause AA'as one in equity, the findings of the jury are merely advisory to the court, and errors in instructions given to the jury are Avithout prejudice. (Lawlor v. Kemper, 20 Mont. 13, 49 Pac. 398; Haggin v. Saile, 23 Mont. 375, 59 Pac. 154; Wetzstein v. Largey, 27 Mont. 212, 70 Pac. 717.) In this instance the whole matter of the relationship* of landlord and tenant, upon, Avhich, the erroneous instructions Avere given, can be entirely eliminated from consideration. The allegations of the complaint with reference to it Avere insufficient to constitute a plea of estoppel, and the consideration given the subject by the trial court so completely failed to affect in any manner the substantial merits of the controversy that it is, not deemed necessary to remand the cause in order that all reference to, it be eliminated from the decree: No contention is made here that any evidence Avas offered on behalf of the defendant tending to establish its right by prior appropriation. The plaintiffs apparently relied upon their claim as prior appropriators, and the defendant upon title by adverse user.

The testimony offered on behalf of the defendant shows that for five yea^s prior to the commencement of this action the defendant and its predecessor in interest had used some, and at certain times all, of thei waters of Black Tail Deer creek, at least a portion of every year; but there is no> showing whatever that such use was had at any time when these plaintiffs had need of the water, or that the use of the water by the defendant interfered with its use by the plaintiffs prior to the year 1891, while this action was commenced in 1893. In order that the use of the water by the defendant company might ripen into a right by1 adverse user, as against the plaintiffs, such use must have been open, notorious, continuous, adverse and exclusive, under’ a claim of right. (Long on Irrigation, Sec. 90, p. 160; Cox v. Clough, 70 Cal. 345, 11 Pac. 732.) It is not sufficient for defendant company to show that its use of the water was open, notorious and continuous, but it must show that such use was adverse — that is, its use of the water must have been such an invasion of plaintiffs’ right to its use, as that they could have maintained an action against the defendant for such invasion; and such adverse use must have been continuous for a period of time equal to' the period of the statute of limitations, which in this instance was five years. (Yankee Jim's Union Water Co. v. Crary, 25 Cal. 504, 85 Am. Dec. 145.) This doctrine is too well established now to- be open to serious controversy. (Long on Irrigation, Sec. 90; Faulkner v. Rondoni, 104 Cal. 140, 37 Pac. 883; Smith v. Logan, 18 Nev. 149, 1 Pac. 678 ; Alta L. & W. Co. v. Hancock, 85 Cal. 219, 24 Pac. 645, 20 Am. St. Rep. 217.)

The plaintiffs had use for thei water only for agricultural and mining purposes, and, when not so using it, the law required them to turn, it back into' the stream for the use of this defendant, or any other person or corporation which might have a right to its use. No' irse of water by a subsequent appropriator can bo said to be adverse to the right of a prior appropriator, unless such use deprives the prior appropriator of it when he has actual need of it. To take the water when the prior appropriator has no use for it, invades no¡ right of his> and cannot even initiate a claim adverse to him. “When there is sufficient water in the river to supply all parties, there can be no such thing as adverse use of the water to start thei statute of limitations running. Each is entitled to the use of the xvater, and it is- only xvhen the xvater becomes so scarce that all of the- parties cannot be supplied, and that one appropriator takes water which by priority belongs to another appropriator, that there is an adverse use.” (Egan v. Estrada (Ariz.), 56 Pac. 721; Anaheim Water Company v. Semi-Tropic Water Company, 64 Cal. 185, 30 Pac. 623.)

The evidence introduced on behalf of the plaintiffs tended to show! that they had sufficient xvater to- supply their, needs until 1891. The evidence failed to establish á right in the defendant to the use of the xvater by adverse user, while it is amply sufficient to sustain the findings of the1 court that the plaintiffs are prior appropriators, and, as such, entitled to- the use of the water as against any claim of the defendant.

The judgment and order appealed from are affirmed.

Affirmed.

Mr. Justice MilbueN:

I concur in the conclusion reached by Mr. Justice Holloway, that the judgment of the loxver court must be affirmed. I do-not think it necessary, hoxvever, under the circumstances of thistoase, to decide now that a water right can, be obtained by adverse user. If there be such a thing as a xvater right not obtained in the xvay expressly provided by the Code for the acquiring of á water right — that is, by actual appropriation, ¡pasting notice, filing and recording declaration in xvritmg, etc. — but obtained by adverse use, such acquirement by adverse use xvas not proven in the case at bar. Eor this reason, the defendant could not prevail against the plaintiffs. This simple statement, in my opinion, should be sufficient, without undertaking now to settle tire unnecessary question; that is, whether a water right can be obtained by adverse use. I am not inclined to the belief that it can be so acquired.