Cocanougher v. Zeigler , 112 Mont. 76 ( 1941 )

I dissent. This is an equity case, and is governed by these long established rules:

(1) The credibility of the witnesses and the weight of their testimony is exclusively for the trial court. (Bowen v. Webb,37 Mont. 479, 97 P. 839; Consolidated Gold S. Min. Co. v.Struthers, 41 Mont. 551, 111 P. 150; Blinn v. HutterischeSoc., 58 Mont. 542, 194 P. 140; Orton v. Bender, 43 Mont. 263,115 P. 406; Parchen v. Chessman, 53 Mont. 430,164 P. 531; Dockins v. Dockins, 82 Mont. 218, 266 P. 398;Piersky v. Hocking, 88 Mont. 358, 292 P. 725; Wallace v.Wallace, 85 Mont. 492, 279 P. 374, 66 A.L.R. 587; Rentfro v. Dettwiler, 95 Mont. 391, 26 P.2d 992, and many others.)

(2) The supreme court will not reverse the findings of the district court in equity cases, except where the evidence clearly preponderates against them. (Story v. Black, 5 Mont. 26,1 P. 1, 51 Am. Rep. 37; Budd v. Perkins, 6 Mont. 223,9 P. 916; Francisco v. Benepe, 6 Mont. 243, 11 P. 637; Noyes v. Ross, 23 Mont. 425, 59 P. 367, 47 L.R.A. 400, 75 Am. St. Rep. 543; Slater Brick Co. v. Shackleton, 30 Mont. 390,76 P. 805; Bordeaux v. Bordeaux, 32 Mont. 159, 80 P. 6;Nichols v. Williams, 38 Mont. 552, 100 P. 969; Watkins v.Watkins, 39 Mont. 367, 102 P. 860; Copper Mountain Min. Smelting Co. v. Butte Corbin Consol. C. S. Min. Co.,39 Mont. 487, 104 P. 540, 133 Am. St. Rep. 595; In re Noyes'Estate, 40 Mont. 178, 105 P. 1013; Quirk v. Rich, 40 Mont. 552,107 P. 821; Kelly v. Granite Bi-Metallic Consol. Min.Co., 41 Mont. 1, 108 P. 785; Murray v. Butte-Monitor TunnelMin. Co., 41 Mont. 449, 110 P. 497, 112 P. 1132; Kift v.Mason, 42 Mont. 232, 112 P. 392; Boyd v. Huffine,44 Mont. 306, 120 P. 228; Winslow v. Dundom, 46 Mont. 71,125 P. 136; Orton v. Bender, supra; Street v. Delta Mining Co., 42 Mont. 371, 112 P. 701;Waldorf v. Phillips, 42 Mont. 80, 111 P. 546.)

(3) Findings of fact by a trial court based on conflicting evidence will not be disturbed on appeal. (Ming v. Truett,1 Mont. 322; Reardon v. Patterson, 19 Mont. 231, 47 P. 956;Anderson v. Cook, 25 Mont. 330, 64 P. 873; Wetzstein v.Largey, 27 Mont. 212, 70 P. 717; Stevens v. Curran,28 Mont. 366, 72 P. 753; Phillips v. Coburn, 28 Mont. 45,72 P. 291; Hennessy v. Kennedy Furniture Co., 30 Mont. 264,76 P. 291; Landeau v. Frazier, 30 Mont. 267, 76 P. 290;Reid v. Hennessy Mercantile Co., 45 Mont. 383, 123 P. 397;Finlen v. Heinze, 32 Mont. 354, 80 P. 918; GazettePrinting Co. v. McConnell, 45 Mont. 89, 122 P. 561, Ann. Cas. 1913C, 1327; Delmoe v. Long, 35 Mont. 139, 88 P. 778;Gehlert v. Quinn, 35 Mont. 451, 90 P. 168, 119 Am. St. Rep. 864; Pope v. Alexander, 36 Mont. 82, 92 P. 203, 565;Alywin v. Morley, 41 Mont. 191, 108 P. 778; Williard v.Campbell Oil Co., 77 Mont. 30, 248 P. 219; Portland CattleLoan Co. v. Featherly, 74 Mont. 531, 241 P. 322; Nelson v.Wilson, 81 Mont. 560, 264 P. 679; Commercial Bank TrustCo. v. Jordan, 85 Mont. 375, 278 P. 832, 65 A.L.R. 968;Fousek v. DeForest, 90 Mont. 448, 4 P.2d 472.

The reason for this rule is forcibly set out in Pope v.Alexander, supra. Mr. Chief Justice Brantly, speaking for the court on motion for rehearing, said: "Though the evidence is presented in question and answer, it is in cold type, without the gestures, behavior, or appearance of the witnesses, and often, as in this case, the illustrations made by them through the medium of maps, diagrams, and other instrumentalities used to make their statements intelligible. It would be manifestly out of place for this court to undertake to try a case and determine it as does the district court. * * * In a given case what is not clear and convincing to us as might be might have been entirely so to the trial judge. At least this presumption attaches to his findings, and this court is not at liberty to overturn them unless there is a clear preponderance against them * * *.

"If we assign the meaning to this testimony which counsel insist that it should have, we should certainly agree with them, and say that the judgment should be reversed. The presumption must obtain, however, that it was understood by the trial court as lending support to defendants' case, and hence that it tended to support the findings as made. Are we justified in saying that it was not clear and convincing to him?"

The trial judge whose decision is under review here came to the bench after many years at the bar in a district wherein water right litigation has been a frequent and varied cause of court actions, and he brings to the bench a broad experience in, and long familiarity with water right laws, the practical application of water to the land, and the varied problems with which water users have to contend. In addition to such experience, the trial judge viewed the premises and the ditches and then found that the changes in defendant's ditch necessary to comply with plaintiff's demand "will result in totally destroying or materially impairing and interfering with defendant's use thereof for the irrigation of his said lands, to his great and irreparable damage." Employing the substance of Mr. Chief Justice Brantly's language quoted above, are we justified in saying that the learned trial judge did not grasp the import of his finding heretofore quoted?

The foregoing decisions and others which adhere to the rule that the trial court's findings must be upheld in equity cases unless there is a preponderence of the evidence to the contrary, may be said to be modified to the extent mentioned in Piersky v. Hocking, 88 Mont. 358, 359, 370, 292 P. 725, 728, where Mr. Justice Ford, speaking for the court, said, "While it is true that in equity cases this court will go no further than to determine whether there is a preponderance in the evidence against the findings of the lower court, it is equally true that the trial court may not disregard uncontradicted credible evidence," citing cases. This holding, in my opinion, does not differ materially from the general rule laid down by the numerous cases cited above.

Having cited the general rule relative to this court's powers of review in equity cases, attention is now directed to the wording of the statutes relative to taking private property for public use under the right of eminent domain. This court said inState ex rel. McMaster v. District Court, 80 Mont. 228,260 P. 134, 135: "The right to take private property from its owner against his will can only be invoked pursuant to law, and there must always be a rigorous compliance with its provisions when this right is sought to be exercised (Glass v. Basin Mining Concentrating Co., 22 Mont. 151, 55 P. 1047; City of Helena v. Rogan, 26 Mont. 452, 68 P. 798), and authority for the exercise of such right must be clearly expressed in the law before it will be allowed (State ex rel. McLeod v. DistrictCourt, supra [80 Mont. 228, 260 P. 134]; 1 Elliott on Roads and Streets, 4th Ed., sec. 218, p. 263)."

Section 9936 provides: "The private property which may be taken under this chapter includes: * * * 3. Property appropriated to public use; but such property must not be taken unless for a more necessary public use than that to which it has already been appropriated; * * *."

Section 9937 provides: "Before property can be taken, it must appear:

"1. That the use to which it is to be applied is a use authorized by law.

"2. That the taking is necessary to such use.

"3. If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use. * * *"

What does "more necessary," mean when it is applied to determine the merit of plaintiff's demand that he be given, under the right of eminent domain, a joint right with the defendant in the use of the latter's ditch?

Webster's International Dictionary, 2nd Ed., gives a number of definitions, each appropriate to the particular use of the word, but it is clear that the manner of its use here is defined by Webster as, "A greater quantity, amount or number; that which exceeds or surpasses what it is compared with."

The meaning of the phrase "more or less," frequently used in instruments of conveyance, is readily grasped by the mind. Such a phrase means just what it says and needs no construction. "More" means greater; "less" means a smaller number or amount. Section 15, Revised Codes, provides in part, "Words and phrases used in the codes or other statutes of Montana are construed according to the context and approved usage of the language." This rule is to be adhered to except only when words or phrases have acquired a peculiar meaning. No peculiar meaning can be attributed to the phrase "a more necessary use," nor to the word "more" as used in sections 9936 and 9937. The words need no construction.

In Montana Central Ry. Co. v. Helena R.M.R. Co., 6 Mont. 416,12 P. 916, 922, the controversy was on the right of one railroad to condemn, under the right of eminent domain, a right of way through a canyon and over the right of way of another railway already in use by the first. After reviewing the evidence, it was found that the relator or plaintiff had not shown necessity for a right of way over the respondent's right of way, and the court then said "that when such necessity does appear, and there is a failure to agree upon the terms of occupancy, the matters in dispute shall be adjusted by the district court of the county where the canyon, pass, or defile is situate, upon equitable terms." This early decision means, of course, that an appeal may be had to the higher court but, in the first instance the "necessity" of the second right of way along a particular line which the one already occupying the way, objects to, shall be determined by the district court, the trier of facts in such cases. This holding is in accord with the rules heretofore mentioned defining the scope of this court's powers to review the findings of a trial judge.

Attention is called to sections 9370 and 9371, Revised Codes, which read:

"9370. In cases of exceptions for defective findings, the particular point or issue upon which the party requires a finding to be made, or the particular defect to be remedied, shall be specifically and particularly designated; and upon failure of the court to remedy the alleged defect, the party moving shall be entitled to his exceptions, and the same shall be settled by the judge as in other cases."

"9371. Such exceptions shall be filed in the court and served on the attorney of the adverse party within five days after receiving from or giving to the adverse party a written notice of the filing of the findings."

Plaintiff's general objection to the ruling of the court was not in accord with the specific requirements of these statutes. This court in Joyce v. McDonald, 51 Mont. 163, 149 P. 953,954, speaking through Mr. Justice Sanner, said: "This cause, moreover, was tried to the court sitting without a jury, and in such a case the trial court cannot be put in error for failure to make findings not requested (Rev. Codes, sec. 6766), nor for defective findings not specially excepted to (Rev. Codes, sec. 6767). The record nowhere discloses any request for findings, nor any exceptions to those which were filed." Mr. Chief Justice Brantly and Mr. Justice Holloway concurred. The rules of procedure provided by statutes are enacted to be observed, not ignored.

I think the correct rule to be applied here is clearly laid down by the Circuit Court of Appeals of the United States for the Ninth Circuit in the case of Oregon Short Line R. Co. v.Postal Telegraph, etc., Co., 111 Fed. 842, 843, where it had under consideration the case as appealed from the southern division of the United States District Court for Idaho, reported in 104 Fed. 623. In outlining what was presented to the lower court, the Circuit Court used this language:

"The defendant in error instituted condemnation proceedings to condemn to its use, as a right-of-way for the purpose of constructing and maintaining a telegraph line, a portion of the right of way of the plaintiff in error used and occupied by it for its railroad, extending longitudinally along the line of the railroad through Idaho from the boundary line of Montana, a distance of about 200 miles. In its complaint the defendant in error alleges that the land which it seeks to occupy will be one circular foot 5 feet deep for each pole to be erected; that it will not attach its wires or fixtures to any of the bridges or structures of the railroad company, and will not erect any of its poles upon any embankment of the company, but will occupy only such portion of the right-of-way as is not necessary for the use of the railroad company; and promises that, if at any time the railroad company shall need any portion of its right-of-way where the poles and lines of the telegraph company are situated, the latter will, upon notice, at its own expense remove its poles and wires from such part of the right of way. Upon issue joined and the testimony adduced, the court rendered judgment in favor of the defendant in error, finding that the use to which it proposed to put the property is a public use, authorized by law, and necessary for its use, and a more necessary public use than that to which it was already appropriated, and that the construction and operation of said telegraph line would not diminish the value of the right of way of the railroad company for railroad purposes. Damages were awarded the plaintiff in error in the sum of $500."

Further along in the body of the opinion, on page 846 of 111 Federal, after reviewing numerous statutory provisions in the various states on the question of condemnation of a right of way for a public use of private property under the right of eminent domain, where the way had already been appropriated by another for a public use, it was said: "To authorize a second condemnation of such properties to a second use which is subversive of the first, there must be express legislative authority. [Citing a number of cases.]" The court then quotes from a Minnesota case [Northwestern Tel. Exch. Co. v. Chicago,M. St. P.R. Co., 76 Minn. 334, 79 N.W. 315] as follows: "``The general rule is that express legislative authority is generally requisite except where the proposed appropriation would not destroy or greatly injure the franchise, or render it difficult to prosecute the object of the franchise, when a general grant would be sufficient. Land already devoted to another public use cannot be taken under general laws, when the effect would be to extinguish a franchise. If, however, the taking would not materially injure the prior holder, the condemnation may be sustained.'"

It will be noted that the Circuit Court of Appeals emphasizes both in the body of its opinion and in its quotations from other jurisdictions the strong disapproval of granting a second right, such as is involved in the case at bar, where the second right would "destroy or greatly injure" the prior right.

This same question is frequently referred to in 20 C.J. under its treatment of the subject of "Eminent Domain." In section 88, page 598, it is said in part: "While property condemned for a particular public use or purpose cannot, unless the fee has been taken, be devoted to a different use or purpose, the rule is well established that property previously devoted to one public use may be taken under the power of eminent domain for another and different public use. * * * The rule is subject, however, to the limitation that property devoted to public use cannot be taken to be used for the same purpose in the same manner, as this would amount simply to the taking of property from one and giving it to another without any benefit or advantage whatever to the public. Where there is no change in the use it becomes a matter of mere private concern without at all affecting the public interest."

On page 602 of 20 C.J., section 90, it is said: "Property already devoted to a public use cannot be taken for another public use which will totally destroy or materially impair or interfere with the former use, unless the intention of the legislature that it should be so taken has been manifested in express terms or by necessary implication, mere general authority to exercise the power of eminent domain being in such case insufficient."

I think that it is quite obvious on a review of the findings of the district court in the case at bar that the trial judge must have rather carefully reviewed Corpus Juris on eminent domain. I think the phrase "materially impair or interfere with the former use," is very important in the case at bar, and from the evidence it clearly appears that the trial judge was convinced that defendant's ditch and premises would be destroyed or materially impaired if plaintiff's demand was granted.

The majority quote at some length from the case of State exrel. Butte-Los Angeles Mining Co. v. District Court, 103 Mont. 30,60 P.2d 380, 385, a case in which the opinion was written by me.

If the majority had read the opinion in its entirety possibly the rule laid down in the case would have been discovered and understood. The court's conclusion in that case is expressed in the following language:

"We assume that this decision will not terminate the controversy, and in the event other proceedings may bring the matter here, we will state that neither party to this action could, by any proceeding under the provisions of the statutes relating to eminent domain, acquire, in our opinion, the exclusive right to the use of that part of the tunnel located on the ground of the other, for the very simple reason that both parties contend they are using, or intend to use, the tunnel forthe same purpose; consequently, neither can say his purpose ismore useful than the other."

That opinion is in accord with the plain meaning of the "more necessary public use" clause of sections 9936 and 9937, Revised Codes; the opinion in the instant case is not.