Hornbuckle v. Stafford

delivered the opinion of the court.

This suit was brought by Stafford, the appellee, against Hornbuekle and Marshall, the appellants, to restrain them from diverting from his ditch a certain quantity of water to which he claimed to be entitled. The complaint alleged that the appellee ivas entitled to such quantity of the waters of Avalanche Creek, or Gulch as it is sometimés called in the record,-in the county of Meagher and Territory of Montana, as would amount to thirty-ffveinches miner’s measurement, at any point

The prayer of the complaint Avas that appellants be forever enjoined and restrained from diverting the Avater from the appellee’s ditches, and for general relief.

The ansAver of the appellants contained denials of all the ■material allegations of the complaint, and specially averred that in the year 1869. a company named the Hellgate & Avalanche Ditch Company was formed by Samuel Clem and four associates to construct a ditch to conduct the Avaters of Avalanche Creek to the foot-hills of Cave Gulch; that appellee became a member of the company and contributed to its property the White and ToAver ditch and the Avater connected therewith, and the other associates contributed certain mining ground, and that each member of the company OAvned oné-sixth

Issue Avas taken on the answer by replication, and the issues of fact Avere tried by a jury, which returned a general verdict for the appellee, and also returned certain special findings, as follows: They found that the thirty-five inches of Avater, decreed to the appellee by the decree of July 11th, 1879, Avas held by the appellee for himself and as his OAvn property, and not in trust for the members of the Hellgate & Avalanche Ditch Company, and that he had never parted with his right to said Avater to the company, either before or after the decree, and that after the decree the Avater did not belong to the Hellgate & Avalanche Ditch Company. Upon the general

From this decree Ilornbuckle and Marshall appealed to the Supreme Court of the Territory of Montana, by Avhich the decree Avas affirmed. The same appellants have brought, by the present appeal, the decrpo of the Supreme Court of Montana to this court for review.

The case, in its nature and substance, belongs to the equity side of the court. Basey v. Gallagher, 20 Wall. 670 . The testimony is all in the record. The points contested between the parties Avere Avhether, under the decree made July 11th, 1871, by the District Court of the Third Judicial District of Montana, and afterAvards affirmed by the • Supreme Court of Montana and this court, the appellee Avas entitled, in his oAATn right, to thirty-five inches of the water of A Avalanche Creek, or whether he held such right in trust for all the associates of the Hellgate & Avalanche Ditch Company, and whether, if the appellee had a several and individual right in the water, the deed made by him to the appellants on March 30th, 1878, conveyed to them such individual right.

The appellee asserted that he held under the decree individually and in his OAvn right the thirty-five inches of water, and that he did not convey such right to the appellants by the deed of March 30th, 1878. The decree in the case of Gallagher and the present appellant v. Basey and the present appellee and another,'rendered June 11th, 1871, is upon its face a decree in • favor of the appellee individually and in his own right, declaring him to be entitled to the thirty-five inches of water in Avalanche Creek. The Hellgate & Avalanche Company is not mentioned in the decree, nor is there any intimation that the appellee was

It is also clear that the deed of the appellee to the appellants of March 30th,' 1878, did hot convey to them the right to the thirty-five inches of water awarded to the appellee by, the decree of July 11th, 1871. It was a quit-claim deed for his undivided four-fifteenths interest in the property known as the Hellgate & Avalanche .Ditch Company, and contained this reservation: “ This deed shall not be so construed as to affect individual rights to waters in Avalanche Gulch.”

The decree of the Supreme Court of Montana Territory in the present case must therefore be affirmed, unless the appellants can make good- some of their assignments of error.

The • first assignment of error relates to the refusal by the District Court to admit in evidence the complaint and answer in the case of Gallagher v. Basey, offered by the appellants, the' court having already admitted the decree rendered in that case. The purpose of the evidence offered was to explain the decree, and to show by the complaint and answer that the right to thirty-five inches of, water awarded to the appellee by the decree was not his individual .right, but was decreed to him in trust for the Hellgate & Avalanche Ditch Company.

The decree having been put in evidence, it was clearly erroneous to exclude the pleadings upon which this decree was based. . Even parol evidence is admissible when necessary to show what was tried in a suit, the record of which is offered in a subsequent action between the same parties. Campbell v. Rankin, 99 U. S. 261 . But in order to sustain the exception to the exclusion of the pleadings, in the case of Gallagher v. Basey, it was necessary .that the exception should show what the excluded testimony was, in order .that it might, appear whether the evidence was material or not. Dunlop v. Munroe, 7 Cranch, 242 , 270; Reed v. Gardner, 17 Wall. 409 ; Montville v. American Tract Society, 123 Mass. 129 . This Was done' by the appellants. A copy of the complaint and answer in the case of Gallagher v. Basey and others is set out in the bill of exceptions. An inspection of the excluded testimony shows that the complaint and answer do not in any degree tend to

While, therefore, the appellants were entitled to put the complaint and answer in evidence as a part of the record, it is clear that the exclusion of the pleadings in no degree prejudiced their case. The decree will not be reversed for such an error. Gregg v. Moss, 14 Wall. 564 .

The appellants next contend that the decree should bq reversed because the court excluded evidence offered by them to show that the consideration on which the appellee became a member of the Hellgate & Avalanche Ditch Company, was the conveyance of his water right in Avalanche Creek to the company. The evidence was properly excluded, because this issue had been passed upon in the case of Gallagher and others v. Basey and others, between the same parties, and decided, as appears by the decree of the court, against the contention of appellants. That decree remaining in full force, was not open to contest in a subsequent suit between the same parties. The testimony was, therefore, properly excluded.

The next and last ground alleged for the reversal of the decree is that the court erred in refusing to permit Hornbuckle, one of the appellants, to testify that when the appellee executed the deed of March 30th, 1878, to the appellants, he made no claim or assertion of any individual right to any of the water of Avalanche Creek. The evidence excluded was clearly inadmissible. The deed expressly reserved the individual rights in the water. The reservation could not be affected by the evidence offered. When a reservation is made in a deed, it is not necessary in order to give it effect that the grantor should, when he executes the deed, assert verbally bis right to the property excepted from the conveyance. Evidence that he made no such assertion is clearly incompetent and inadmissible.

"We are of opinion, therefore, that neither of the grounds

Upon an examination of the whole record, we are convinced that the decree of the District Court, which was affirmed by the Supreme Court of the Territory of Montana, was according to “ the right of the cause and matter of law.” It is plain the appellants had no case.

Decree affirmed.