Carman v. Staudaker , 20 Mont. 364 ( 1898 )

Pemberton, C. J.

The only question presented by this appeal is as to whether the District Court erred in excluding the evidence offered by the defendant to prove that the two lateral ditches in controversy were not appurtenances to the main ditch, a one-third interest in which the plaintiff purchased of defendant, as shown in the statement of the case.

The lateral ditches are not mentioned in the deed executed by defendant to plaintiff for the one-third interest in the main ditch. The District Court, however, excluded the evidence offered to show that such ditches were not appurtences to the main ditch, and found, as a matter of law, that such lateral ditches were appurtenances to the main ditch, by the terms of the deed to the one-third interest therein. We think this was error. It does not, in our opinion, appear from the terms of the deed of defendant to plaintiff of a one-third interest in the main ditch mentioned therein, that these lateral ditches, or either of them, are necessarily appurtenant to the interest the plaintiff purchased in the main ditch. It does not appear from the terms of the deed in question that the lateral ditches, or either of them, were essential or necessary to the enjoyment of the rights acquired by plaintiff by the purchase of one-third interest in the main ditch. It does not appear from the deed that such lateral ditches were or are even conveniences in the use of the rights acquired by plaintiff by his purchase of an interest in the main ditch.

As none of these things appear upon the face of the deed in question, and which we think ought to appear, either expressly or by implication, and as the evidence offered and excluded was not intended to contradict or alter the terms of the deed, we think the court erred in excluding it, and finding, as a matter of law, that the lateral ditches were appurtenaces to the rights of plaintiff acquired by the deed to the interest in the main ditch.

The judgment and order appealed from are reversed, and the cause is remanded for new trial.

Reversed and Remanded.

Hunt and Piggott, JJ., concur.