Custer Consolidated Mines Co. v. City of Helena , 45 Mont. 146 ( 1912 )

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Appeal from an order directing the issuance of an injunction pendente lite. The action was brought to quiet title in the plaintiff to the use of fifty inches of the water flowing in Beaver creek, in Broadwater county. The complaint alleges an appropriation by the predecessors in interest of plaintiff and defendant in the year 1865 of about 1,000 inehes of water, and a diversion thereof by means of a diteh for use upon placer mines and other purposes ; a sale by such predecessors in 1881 of fifty inches to mesne grantees through whom the plaintiff claims title in consideration of a grant to the original appropriators by said grantees of a right of way across lands of the latter for a diteh which was thereafter constructed; continuous adverse use of the water the right to which was so conveyed by the mesne grantees and plaintiff to the bringing of this action; and a purpose on the part of” the defendant to divert all of the water flowing in the stream, and to convey it away by means of a pipe-line to supply a water system about to be erected by it. The prayer is for a decree declaring the plaintiff entitled to the use of the amount claimed, and for a perpetual injunction restraining the defendant from carrying out its purposes.

The amended answer of the defendant denies the right of plaintiff to the use of any of the water. It then, by way of counterclaim, alleges, substantially, the following: That prior to 1865 its predecessors appropriated and applied to useful purposes 1,328 inches of water flowing in the stream; that after the date of its appropriation and down to the year 1901, when defendant by mesne conveyances acquired these rights, the water was continuously used by its said predecessors, and their successors in interest; that on March 8, 1910, the defendant leased to the Spokane Ranch and Water Company, a domestic corporation, all of said water and also certain other water designated as Beaver Creek bedrock drain water, and that since the execution of said lease all of the water has been used for agricultural purposes by said lessee and by other corporations and persons owning lands in the vicinity of the lands of the lessee and using said water under such agreement with the said lessee; that at divers times since the execution of the said lease by the defendant the plaintiff has by means of ditches tapping the stream above the head of the ditch by which the water is conveyed to the lands referred to diverted water from the stream to sucb an extent that there has not been left flowing therein an amount equal to 1,000 inches, and that plaintiff has repeatedly so diverted water and threatens to do so to the great damage of the lessee of the defendant; that all the water so conveyed to defendant by its predecessors is necessary for the cultivation of crops of hay and grain on the lands of defendant’s lessee and the adjacent land owners; that the entire amount of water now flowing in the stream and which has been flowing therein since July 10, 1911, has been much less than 1,000 inches, and less than is adequate for the cultivation and maturity of the crops growing upon the lands of the defendant’s lessee for the irrigation of which it procured said lease to be executed. The prayer is for a decree against plaintiff perpetually enjoining it from diverting any water from the stream so as to reduce the amount of the flow to less than' 1,328 inches. The amended answer was filed on July 20, 1911. It was accompanied by affidavits by H. H. Pigott and W. B. Fisher, respectively president and general manager of the Spokane Ranch and Water Company, and upon the showing made by these affidavits and the answer the district judge made an order requiring plaintiff to show cause why the injunction should not issue. It was made returnable at chambers in Bozeman, Gallatin county, on July 24, 1911. After a hearing had upon affidavits and oral testimony the order was made directing the injunction to issue.

The contention is made that the counterclaim does not state facts sufficient to warrant the making of the order. It will be noted that the pleading contains no allegation showing that defendant is bound by the terms of the lease to protect the Spokane Ranch and Water Company in the quiet enjoyment of the right leased, nor that the reversionary interest is being injured in any way, nor that the defendant will suffer any pecuniary loss if the plaintiff is not restrained during the progress of the litigation from doing the acts complained of. The only allegation of wrong other than that upon which defendant desires ultimate relief is that which is accruing and will accrue to the Spokane Ranch and Water Company and its associates. The question presented, therefore, is whether the defendant is entitled to a temporary injunction solely upon the ground of plaintiff: ’s interference with the right of the lessee company.

That a landlord may maintain an action against a stranger for [1] a permanent injury to his lands in the possession of a tenant cannot be doubted. By virtue of the lease an estate is carved out of the fee and is vested in the tenant, but the landlord still has an inheritance technically designated as the reversion. For a trespass upon the possession of the tenant or for injury to his estate, the right of action is in him. An injury which affects the reversion is a wrong to the landlord, to be redressed by an action by him, although the tenant is in possession. (24 Cyc. 925; Arneson v. Spawn, 2 S. D. 269, 39 Am. St. Rep. 783, 49 N. W. 1066.) The wrong may be such as to affect both these distinct interests. This gives a right of action to the owner of each. (Kernochan v. New York E. R. Co., 128 N. Y. 559, 29 N. E. 65.)

The right to the use of water is an incorporeal hereditament, an intangible right. From its nature a contract with respect to it cannot, technically speaking, establish the relation of landlord and tenant. (Swift v. Goodrich, 70 Cal. 103, 11 Pac. 561.) Wrongs done by interference with such an interest cannot therefore be redressed by the same character of actions as are applicable to wrongs done by the invasion of corporeal rights. The most appropriate remedy to protect such an interest is a suit in equity. (Barkley v. Tieleke, 2 Mont. 59.)

But the form of the remedy does not alter the relation of the parties to each other or to their respective rights in the property. Under the statute, with the exceptions enumerated, an action must be brought in the name of the real party in interest. (Rev. Codes, see. 6477.) There can be no doubt of the right of the [2] defendant to have the ultimate relief demanded in its counterclaim, via., the determination of plaintiff’s adverse claim; for, if the plaintiff should be permitted to continue its diversion, the right thus asserted might finally ripen into a title by adverse use. Upon the assumption that defendant’s right is superior, plaintiff’s diversion- is an injury to tbe reversion which defendant may protect by suit, but the right of use during the term of the lease is vested in the Spokane Ranch and Water Company, the lessee.

The purpose of an injunction pendente lite is to preserve the status quo until the ultimate rights of the parties may be determined. Under the facts stated, the defendant has no concern as to whether its lessee is disturbed or not. The running of the statute is stopped by the pendency of the action; and, if the lessee is indisposed to assert its right of present use under its contract, this is no concern of defendant. The lessee might by intervention in this action or by an independent action obtain temporary relief by injunction, but the defendant is suffering no injury which demands this temporary relief. It must follow, therefore, that the court erred in issuing the injunction at the instance of the defendant. The order is accordingly reversed.

Reversed.

Me. Justice Smith and Me. Justice Holloway concur.