Crowder v. McDonnell , 21 Mont. 367 ( 1898 )

Hunt, J.

The decree in the suit of Crowder against McDonnell et ah, which was an action for specific performance, fixed the relationship between plaintiff and defendants as one of co-tenancy. This was a correct judgment upon the facts as found in that suit; for when Crowder purchased from Mills, one of the original owners in the ditch, the right to the use of 60 inches of the waters flowing therein, and his interest in the ditch itself, and went into possession with the defendants, he became the successor to a tenancy in common with the defendants who were also owners. (Mining Co. v. Taylor, 100 U. S. 37; Meagher v. Hardenbrook, 11 Mont. 385, 28 Pac. 151.) Regulations for the manner of use of the water by arrangement between co-tenants, or by order of the court, are not inconsistent with the relationship of a tenancy in common. 1 ‘Where a ditch through which water is diverted and applied to any beneficial purpose is owned by several proprietors, and their relation is not defined by special agreement to the contrary, they are to be regarded as tenants in common of the ditch, and their rights are determined and governed by the rules of law regulating tenancy in common. As tenants in common, each one has the right to enter upon and occupy' the whole of the common property to maintain an action against any co-tenant to recover his share of the rents and profits. And where different persons separately appropriate the waters of a stream, and are severally using the same under certain regulations as to the° time and manner of such use, they are tenants in common, and each of them may maintain an action to enjoin a trespasser from diverting any portion of the water thus appropriated.” (Kinney on Irrigation, Section 301. See, also, Pomeroy on Water Eights, Section 63.)

These well-established rules, when applied to the facts of the case under consideration, lead to the affirmance of the general view of the learned district judge, holding that plaintiff could not recover herein for damages sustained on account of the negligent construction or location of the ditch. Mills, plaintiff’s grantor, having performed one-seventh of the work of constructing the ditch from its beginning to the west line of his land, plaintiff, as his successor, cannot sustain an action against defendants, his co-tenants, for any negligence, the direct cause of which his grantor, Mills, was equally guilty with defendants. This left the action as one simply for damages resulting from the negligent maintenance of the ditch. The attention of the district court was not called to this particular allegation of negligent maintenance, nor was it adverted to or considered upon the ruling in granting the nonsuit. But the question has presented itself to us as one material to a decision. Ordinarily no action for negligent maintenance would lie by one co-tenant against another; but upon the trial of this action the plaintiff offered in evidence the judgment roll and decree in the former suit of Crowder against McDonnell et al., and thus established, as res adjudicada, not only a relationship of co-tenancy between his grantor and defendants, but the further fact that an agreement existed between his predecessor, Mills, and the defendants as his co-tenants, whereby Mills was relieved from responsibility for repairs upon the ditch which was the property of the co-tenants. Plaintiff, having purchased with knowledge, took the property subject to the conditions of the agréement of his predecessor with his co-tenants, and is himself accordingly relieved from liability for repairs upon the ditch. This being so, he has a right of action for damages, if any have been suffered on account of the negligent maintenance of the ditch due to a failure to keep the same in repair. He cannot recover, as indicated above, for damages resulting from percolation or overflow due to faulty location or' construction, for he is himself responsible with his co-tenants for such damages; but he can for injuries accruing by reason of a failure to keep the ditch in a state of repair, so that it will carry water for the uses of himself as well now as it did before any repairs may have been necessary; and, of course, under the statute, he can always recover for damages arising by reason of the destruction of the ditch, or resulting from an ouster, or certain other abuses to the property whereby injury resulted to the other co-tenants. But we find the record does not justify any claim upon any of such other grounds.

So there is nothing left to examine, beyond the question whether or not, under the pleadings and evidence, plaintiff made out a prima facie case of damages because of a failure on the part of his co-tenants to keep the property in repair. Now, the omissions of these defendants, plaintiff’s co-tenants, to repair the ditch, created no general liability, and constituted^ no tort, independently of the agreement between them and plaintiff’s grantor, which relieved such grantor from contributing to repairs. It was only by virtue of that agreement, which, fairly construed, was, in our opinion, not alone a contract to relieve Mills of contributing to repairs, but was impliedly an obligation on defendants’ part to keep up the necessary repairs, that plaintiff can sue at all. He therefore had no cause of action ex delicto, but did have ex contráctil. It was really the breach of a contract which was relied on by plaintiff, and his complaint should have shown, upon the face of it, what the terms of the contract were, and the facts which constituted the breach thereof. Instead of pursuing this course, however, he disregarded any co-tenancy and contract, and framed his complaint upon the theory that defendants were liable for a violation of a géneral duty. The proof nevertheless showed they were not so liable, because of their tenancy in common, yet there was evidence tending to prove that they were liable upon the contract, which did away with that immunity which would have been theirs except for such contract. Defendants are not in a position to complain of this ruling, inasmuch as they pleaded the decree and judgment roll in the former suit, and by doing so established the very contract which made them liable for repairs, and which relieved plaintiff from responsibility in that respect. If the decree had found only that the relationship of co-tenancy existed, plaintiff ought to have been nonsuited; but as it, in effect, put all the parties in a position towards the contract to repair the ditch as if no such relationship existed, upon the issue of negligent maintenance for lack of repair plaintiff made out a sufficient case to go to the jury. His evidence was very meager upon the issue, but upon application for a nonsuit there was enough to have required the court to overrule the motion. It appears in testimony that the banks of the ditch were broken, and were not repaired so as to put the ditch in as-good condition as it had been in former years.

The case is, therefore, brought within the scope of the rule that the facts which the plaintiff failed to properly state were supplied by the averments of the answer, together with the record of the former suit, expressly averred, and admitted to be binding in this action. (Hamilton v. G. F. S. R. Co., 17 Mont. 334, 42 Pac. 860, and 13 Pac. 713; Lynch v. Bechtel, 19 Mont. 548, 48 Pac. 1112.) It was tried with this record in evidence; plaintiff making it part of his case by proof on trial, and defendants making it part of theirs by pleading. Under such circumstances, there was no prejudice to defendants’ rights by the departure from the original theory upon which the complaint was drawn; and while the court was correct upon all the questions involved, except that of negligent maintenance, upon that one point there having been a sufficient showing to go to the jury, under proper instructions, the case must be reversed.

The judgment is therefore reversed, and the cause is remanded, with directions to, grant a new trial according to the views herein expressed; costs to be equally divided between appellant and respondents.

Reversed and remanded.

Pigott,'J., concurs.