Galiger v. McNulty

A rehearing was granted in this cause and the court indicated certain subjects on which it requested further enlightenment. On re-argument nothing new was developed, although counsel went much deeper into the proposition theretofore considered. The construction given by this court to the decree of 1875 (cause No. 1249) is the main thing against which the re-argument was directed, and that decree is, in fact, the very essence of appellants' cause. The pleadings in that cause were stated, in substance, in the original opinion, and will not be restated.

Appellants make reference to the decision of this court in the case of In re Smith's Estate, 60 Mont. 276-301, 199 P. 696. That decision is to the effect that a final decision by a court of competent jurisdiction remains final as to the parties and their privies, unless modified, reversed or set aside. The reasons are very ably stated and are amply sustained by the citations there given. The doctrine stated is now, and has been, the law ever since the establishment of our jurisprudence.

As a matter of pleading, there is not any law that relieves a[10] defendant from pleading new matter on which affirmative relief is sought, with the same particularity as is required of the plaintiff; otherwise, the plaintiff would have no notice of what he had to meet at the trial.

In pleadings in equity, as stated by Blackstone, the rule was: "A defendant cannot pray anything in this, his answer, but to be dismissed the court, and, if he has any relief to pray against the plaintiff, he must do it by an original bill of his own, which is called a cross-bill." (2 Cooley's Blackstone, 3d ed., book 3, star page 448.)

The terms "set-off" and "recoupment" are by some authorities[11] included in the term "counterclaim." (St. Louis Nat.Bank v. Gay, 101 Cal. 286, 35 P. 876; Raymond v. State,54 Miss. 562, 28 Am. Rep. 382.) And they must be pleaded in some form, or there is nothing on which to base a judgment. The rule as stated in Blackstone above has been consistently followed by both English and American courts. (Erbes v. Smith, 35 Mont. 38,88 P. 568; Union Mercantile Co. v. Jacobs, Sultan Co., 20 Mont. 554, 52 P. 375; Dolenty v. Rocky Mt. BellTel. Co., 41 Mont. 105, 108 P. 921; Story's Equity Pleadings, sec. 399a; Abbott v. Monti, 3 Colo. 561.)

The provision of section 9137, Revised Codes 1921, that, if relied upon, the answer must contain "a statement of any new matter constituting a defense or counterclaim," and the provisions of section 9148 of the same Code that "where the defendant deems himself entitled to an affirmative judgment against the plaintiff, by reason of a counterclaim interposed by him, he must demand the judgment in his answer," are but expressions of the common law and were a part of our statutory law long prior to the commencement of said cause No. 1249. (Civil Prac. Act, Montana Territory, Bannack Statutes 1864-67, p. 51, sec. 46 et seq.) This same statute is found in Codified Statutes of Montana 1871-72, page 38, section 56, and also in all subsequent statutes of the territory and state of Montana.

Hungarian Hill Gravel Min. Co. v. Moses, 58 Cal. 168, was a much stronger case, so far as the allegations of the answer are concerned, than cause No. 1249. The trial court in that case granted the defendant affirmative relief, but the supreme court struck it from the decree, for the reason that: "The answer of the defendants contained none of the elements of a cross-complaint, as distinguished from a defense to plaintiff's action, and contained no prayer for affirmative relief. That part of the decree awarding affirmative relief should be stricken out."

It is true no appeal was taken from the decision of Judge Knowles, but it is likewise true that no water right was adjudicated by him; hence no appeal on that question was required nor would lie.

The origin of the water right claimed by predecessors of appellants was not a pleaded issue in cause No. 1249. Whether defendants in that cause claimed by purchase from the Holters, or whether the Holters owned any right, or whether they claimed by original appropriation, or whether they claimed any water right at all, their answer is wholly silent both as to allegation and demand, except by mere innuendo, and that only as a defense. The[12] first adjudication of appellants' rights was in the case now on appeal, and in the instant case both the pleadings and evidence of the appellants are to the effect that their appropriation and the use of the water for more than fifty years were solely for mining purposes, and there was neither claim, demand nor pretense that they were using, or desired at any time to make use of, the water for any other purpose, except after their appropriation had been subserved to sell the surplus to intervener, and that is not permitted under our irrigation laws.

The trial court passed upon all the issues presented to it by the pleadings and evidence, and the findings are sustained thereby. The court could do no more. If appellants had additional rights, they were not urged.

Relating to the change in appropriation — and only as a matter of general discussion — the following additional authorities may be cited: Hough v. Porter, 51 Or. 318, 95 P. 732,98 P. 1083.)

Reference is made to Meagher v. Hardenbrook, 11 Mont. 385,28 P. 451. This case was decided in 1891, and involved the rights of tenants in common of a water right, and also the right to change the place of diversion and to change from "one lawful and beneficial purpose to another." The opinion does not refer to any statute, but the statutes then were the same as they are now. (Secs. 1252 and 1254, 5th Div. Comp. Stats. 1887, now secs. 7095 and 7098, Rev. Codes 1921.) Whether others are injured by such change is a question of fact, or a question of law based upon the facts. If no one is injured, no complaint can be sustained.

Featherman v. Hennessey, 43 Mont. 310, 115 P. 983, also referred to, was decided in 1911. The court found that others were injured by the proposed change, and affirmed the trial court in limiting "the use to the time and purpose for which appellant had made his appropriation and thereafter used it, subject to such change only, as to the purpose and place of use, as could be effected without infringement of the rights acquired by others pending such use."

We find no reason for changing the original opinion, and the order therein is affirmed.

Affirmed.

ASSOCIATE JUSTICES MYERS, STARK, MATTHEWS and GALEN concur.