The only question involved herein is the ownership of the ditch. Appellant claims only that portion of the ditch lying upon his own land. Unless the respondent owns this ditch, or has an easement therein, naturally the portion of the ditch claimed by appellant is part of his own land and owned by him. In other words, unless the respondent has proved title to this ditch, the title thereto is in appellant free from any easement or title of respondents.
The answer sets up title by adverse possession from 1871. No other title is pleaded. No patent was issued until 1892. What the status of the land was prior to that time is not shown in the testimony, and respondent had the burden of proving that this land was public domain between 1871 and 1892. (1 Wiel on Water Rights, 3d ed., 233; Cave v. Tyler, 133 Cal. 566,65 P. 1089, 1090.) *Page 71
Under the pleadings of the respondent, which set up adverse possession continuously from 1871, he cannot rely upon any adverse possession from 1892 or from 1908 (when he admits the head of the ditch was moved up the creek) or from some subsequent period of time. Adverse possession, being a statute of limitations, must be pleaded. The defendant cannot plead adverse possession to the ditch as it existed in 1871, and then rely upon adverse possession of an entirely different ditch as far as the point of diversion is concerned, or adverse possession from 1892.
There could have been no adverse possession prior to 1892. "Although the land in dispute was in the possession and occupancy of the plaintiff and her predecessor in interest for more than thirty years, neither she nor her grantor could secure title to it by adverse possession, use or occupancy for any length of time as against the government." (Bode v. Rollwitz, 60 Mont. 481,199 P. 688; see, also, Northern Pacific Ry. Co. v. Cash,67 Mont. 585, 216 P. 782; Northern P. Ry. Co. v. Smith,62 Mont. 108, 203 P. 503.)
But even assuming (for the sake of argument only) that respondent's pleading is broad enough to permit of proof of adverse possession from 1892, when the land was patented to a predecessor in interest of appellant, such an assumption could not aid respondent. Admittedly the only point of diversion was abandoned in 1908, and the head of the ditch moved up the creek 15 or 20 feet without any proven easement or consent from the owner of the land. (Babcock v. Gregg, 55 Mont. 317,178 P. 284.)
It will be noted from the above case, that if the prescriptive rights of the respondent, if any, to the upper portion of the ditch are lost, then it follows, as a matter of course, that the prescriptive right of the respondent would fail as to the entire ditch. The ditch would, of course, be valueless to the respondent unless he could run water in it, and if he has no title to the head of the ditch, naturally, he could not flow any water into the remainder of the ditch. (9 A.L.R. 424.) *Page 72
In order to rely upon abandonment of the ditch by defendant, it is not necessary, in this kind of an action, for the plaintiff to affirmatively plead abandonment, and proof of allegations can be given and received under the general issues. (1 C.J. 11;Wilson v. Cleaveland, 30 Cal. 192; Bell v. Bed Rock Tunneland Mining Co., 36 Cal. 214.)
Prescription, or adverse possession, to the ditch could not be shown for ten years after 1908, because it is admitted that appellant took possession of his land in 1911 and thereafter claimed the ditch, cut the ditch and each year interfered with respondent's alleged claim of ownership. Such proof is not a sufficient basis for adverse possession. (Hays v. DeAtley,65 Mont. 558 at 564, 212 P. 296; Rodda v. Best, 68 Mont. 205,217 P. 669; Stetson v. Youngquist, 76 Mont. 600,248 P. 196.)
Again, the ditch and flume has been greatly increased in size during the past ten years. Respondent cannot, under an alleged prescriptive right, move his ditch at pleasure. He cannot subject appellant's land to any greater burden than the right, if any, he originally enjoyed. Nor has he the right to increase a mere furrow to a large canal under the pretense of "cleaning it out."
Respondent, however, may abandon his alleged prescriptive right and contend that he obtained title by grant from the United States under the provisions of sections 2339 and 2340 of the United States Statutes. He has pleaded no such grant. He offered no proof that this land was unappropriated public domain. He relies, in his answer, upon adverse possession from 1871. Title by prescription and by grant are inconsistent. One is destructive of the other. The case of Lowry v. Carrier, 55 Mont. 392,177 P. 756, is in point.
Respondent has failed to prove any title to the ditch and the burden was upon him to do so. This is not a case where the plaintiff must rely upon the strength of his own title and not upon the weakness of that of his adversary, because if respondent has no easement, appellant, as owner of the *Page 73 ground, owns the ditch. But, in any event, appellant has conclusively shown, as a matter of law and fact, that if respondent ever had any title, he abandoned it in 1908. Under United States statutes concerning irrigation ditches, respondent's predecessors had established a right to the ditch in question prior to issuance of patent to Elfers Placer, and this patent was subject to the right to maintain and continue the ditch. (Secs. 2339, 2340, U.S. Rev. Stats.; Lowry v. Carrier,55 Mont. 392, 177 P. 756.)
Appellant asserts that the proof was not absolutely conclusive of the land being public domain in 1871 and the burden of proof rested upon respondent to establish this fact. The issuance of patent itself 20 years following the date in question, ought to be sufficient to show that at the time in question, the land was unpatented public domain. At any rate, the testimony of the only survivor that the ground was then open, unoccupied, uninclosed land, would indicate that it was public domain.
Appellant asserts that respondent had the burden of proving that the land was public domain, citing 1 Weil on Water Rights, 3d ed., 200. Under any rule it would seem that the testimony produced by respondent, would be amply sufficient to sustain the burden of proof, if he had any such burden. If he did not do so directly, appellant certainly by inference led respondent and the court into the belief that the status of the land as public land was sufficiently proven and not denied and appellant cannot now change his position in this respect. (Grasswick v. Miller,82 Mont. 364, 267 P. 299.) However, appellant's position is not sustained by the rule given in the foregoing authority, but directly the contrary would seem to be the rule: "Formerly this preponderance of public lands in fact gave rise to a presumption of law that the lands were public, and the party claiming the *Page 74 lands in suit were private had the burden of proof." (See, also.Lytle Creek Water Co. v. Perdew, 2 Cal. Unrep. 262, 2 P. 732.) Respondent did produce the only proof available when he showed by the testimony of those familiar with the ground in the early days, that it was open, unfenced, unoccupied land. As is said in Rowley v. Mullen, 74 Mont. 283, 240 P. 374, to have required of the respondent a burden of proof impossible to maintain, "would be a serious reproach to the law."
Wherever the question has arisen, it has unanimously been the holding of the courts that where an appropriation of water has been made upon unpatented land held under possessory rights by private persons, such as unpatented mining claims, which lands again revert to the public domain, the appropriator has the benefit of the above statutes of the United States. (San JoseLand Water Co. v. San Jose Ranch Co., 129 Cal. 673,62 P. 269; LeQuime v. Chambers, 15 Idaho, 405, 21 L.R.A. (n.s.) 76, 98 P. 415; Maffet v. Quine, 93 Fed. 347; Id., 95 Fed. 199;Rassmussen v. Blust, 85 Neb. 198, 133 Am. St. Rep. 650, 122 N.W. 862; Broder v. Natoma Water Min. Co., 101 U.S. 274,25 L. Ed. 790.)
But appellant urges that because the ground was unpatented, the statute of limitations would not run against the possessory right, if any, of anyone who may have occupied the land prior to the patent. This argument however, is without merit. The only possessory right anyone could have had to this ground would have been by virtue of prior mining location. A right by prescription can run against the occupant of public domain just the same as against the occupant of patented land, and certainly runs against an occupant of an unpatented mining claim. The prescriptive right cannot affect the paramount title of the United States, but does run against the occupant. (Lord v. Sawyer, 57 Cal. 65;Northern P. Ry. Co. v. Pyle, 19 Idaho, 3, 112 P. 678;Rathbone v. Boyd, 30 Kan. 485, 2 P. 664; Stewart v.Williams (Tex.Civ.App.), 167 S.W. 761; Harvey v. Holles,
*Page 75 160 Fed. 531; Northern P. Ry. Co. v. Kranich, 52 Fed. 911; Mass v.Burdetzke, 93 Minn. 295, 106 Am. St. Rep. 436, 101 N.W. 182;Boe v. Arnold, 54 Or. 52, 20 Ann. Cas. 533, and note at 538, 102 P. 290.)
Appellant asserts that respondent's claim of title to the ditch by original appropriation of constructive grant under the statutes of the United States, and also respondent's claim of title by adverse possession, are inconsistent and each renders the other nugatory, citing Lowry v. Carrier, supra. It would seem a harsh rule that where a party pleads title by appropriation and also title by adverse possession, thereupon, without objection from the adverse party both claims became nugatory because inconsistent. No court has ever so held, and certainly such is not the holding in Lowry v. Carrier, supra. In the Lowry Case, this court disregarded the lower court's finding of title by prescription, as well as title by grant, and sustained the decree of the lower court. In this case, if the court should find against Lannen against his claim of title by grant, then certainly the question of title in respondent by adverse possession becomes important, and the court could not decide in favor of the appellant without a finding against the respondent upon the question of adverse possession. The court below having decided in favor of respondent, must necessarily be held to have found in respondent's favor upon the question of adverse possession, and such finding is amply sustained by the testimony.
It is asserted that respondent changed the head of the ditch, and therefore must be held to have abandoned the entire ditch. To say that a person who has a right to a ditch may not repair the head of the ditch and clean the sediment from it and so arrange the point of diversion that water can be diverted into the ditch, without losing the right to the ditch, is not only contrary to law, but contrary to common sense. The right to the ditch having been once acquired by respondent and his predecessors, the same cannot be lost except by abandonment or by grant or by adverse user. Certainly respondent could not be held to have abandoned his *Page 76 ditch, because his use was continuous through the period of fifty years. Even nonuse does not constitute an abandonment in the absence of an intent to abandon. (Moore v. Sherman, 52 Mont. 542,159 P. 966; Lowry v. Carrier, supra; Thomas v.Ball, 66 Mont. 161, 213 P. 597.) This is an action to quiet title to an irrigation ditch situated in Granite county and having its beginning at Bear Gulch Creek.
The complaint is in the usual form in such cases, and alleges that plaintiff is the owner of the ditch. This is denied by the answer, and by way of an affirmative defense the pleading alleges that the defendant and his predecessors in interest have been in the adverse possession of the ditch ever since 1871. It further alleges that in May, 1920, a decree was entered in the district court of Granite county, in an action wherein Chris Lannen was plaintiff and G.C. Dahlberg was defendant, wherein it was adjudged that Chris Lannen had the right to use the ditch here involved, and that G.C. Dahlberg, the plaintiff herein, was restrained and enjoined from interfering with the ditch or with the use thereof by the defendant herein. It is alleged that plaintiff is estopped by the decree in that action from claiming title to the ditch. The material allegations in the affirmative defense were put in issue by the reply.
The cause was tried before the court, sitting without a jury, and resulted in judgment in favor of the defendant. A motion for a new trial was denied, and this appeal taken from the judgment.
Plaintiff's several assignments of error all raise the same question, viz.: Is the evidence sufficient to support the finding and judgment that defendant is the owner of the ditch?
A suit to quiet title is one in equity. (Larson v.[1] Peppard, 38 Mont. 128, 129 Am. St. Rep. 630, 16 Ann. Cas. 800, *Page 77 99 P. 136.) On appeal in an equity case, where the ground on which reversal is asked is that the evidence is insufficient to support the findings, this court will not set aside the finding, unless there is a decided preponderance in the evidence against them, and, where the evidence furnishes reasonable grounds for different conclusions, the findings will not be disturbed. (Allen v. Petrick, 69 Mont. 373, 222 P. 451; Warren v.Senecal, 71 Mont. 210, 228 P. 71; Anaconda National Bank v.Johnson, 75 Mont. 401, 244 P. 141; Gibson v. Morris StateBank, 49 Mont. 60, 140 P. 76.) Where the evidence is conflicting, this court will make allowance for the more advantageous position occupied by the trial judge in passing upon the credibility of witnesses. (Barnard Realty Co. v. City ofButte, 55 Mont. 384, 177 P. 402.)
The record discloses that plaintiff is the owner of certain land known as the "Elfers placer mining claim" and that defendant is the owner of land adjoining that of the plaintiff on the south and known as "Mouth of Bear placer mining claim." Patent to plaintiff's land was originally issued to John Elfers and John C. Lehson in April, 1892, and patent to defendant's land was originally issued in July, 1878, to John Lannen. In April, 1871, John Lannen appropriated certain waters from Bear Creek and dug the ditch in question. The head of this ditch is located on the Elfers placer mining claim, about 785 feet from the north line of the Lannen claim, and the ditch extends in a southeasterly direction to the south boundary of plaintiff's mining claim, and thence on to the land of the defendant.
At the time the ditch was dug the land now embraced in the[2] Elfers placer mining claim was open, unoccupied, and uninclosed. The evidence shows that the ditch has been used by the defendant and his predecessors in interest for irrigation purposes every year since it was dug, but with some interruptions on the part of plaintiff.
Defendant contends that under the evidence the judgment of the lower court is correct, by reason of the provisions of *Page 78 sections 2339 and 2340 of the United States Revised Statutes (U.S.C.A., Tit. 43, sec. 661 [43 U.S.C.A., sec. 661]). These sections provide:
2339. "Whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed. * * *"
2340. "All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section."
Under these statutes, entrymen on public lands over which ditches had been constructed before entry take the land burdened with this easement. (Lowry v. Carrier, 55 Mont. 392,177 P. 756.) The patent issued to plaintiff's predecessors in interest contained a clause that the conveyance was subject to vested and accrued water rights and "rights to ditches used in connection with such water rights as may be recognized and acknowledged by the local laws, customs, and decisions of the courts." The plaintiff took the land described in the patent subject to the same servitude. (Kinney on Irrigation and Water Rights, sec. 934, p. 1649.)
Plaintiff contends that, since no right was claimed by[3] defendant under these sections of the federal statutes in his answer, he may not now assert a right thereunder. It is unnecessary to decide whether evidence on the part of the defendant to establish his right to the ditch by virtue of these statutes was admissible under his general denial. The evidence showing that the land was open, unoccupied, and uninclosed when the ditch was dug was introduced without objection. *Page 79 The rule is well established in this jurisdiction that where evidence, not warranted by a party's pleading, is admitted without objection his pleading will be deemed amended to conform to the proof. (Davis v. Claxton, 82 Mont. 574, 268 P. 787;Parsons v. Rice, 81 Mont. 509, 264 P. 396; Blackwelder v.Fergus Motor Co., 80 Mont. 374, 260 P. 734; Ellinghouse v.Ajax Live Stock Co., 51 Mont. 275, L.R.A. 1916D, 836, 152 P. 481.)
Plaintiff further contends that the burden was upon defendant[4] to prove that the land on which the ditch was dug was unappropriated public land between 1871, the time of constructing the ditch, and 1892, the time when plaintiff's predecessors obtained patent, and that he has not sustained this burden of proof. With this latter contention we do not agree. We agree with the rule stated by the supreme court of Washington in the case ofWendler v. Woodward, 93 Wash. 684, 161 P. 1043, where the same question was before that court. In the opinion in that case the court said: "The fact that the land was vacant and unoccupied is some evidence that it was unappropriated, in the absence of evidence to the contrary. While the burden of proof is upon the appropriator, when his title is questioned, to show that, at the time of his appropriation, the land on which the water was appropriated was vacant and unappropriated, we know, as a matter of fact, that lack of improvement and settlement upon land within the public domain is some evidence that it is unappropriated. There was no controverting evidence or inference that it was appropriated when Champ made his appropriation of the water thereon. Champ made prior paper appropriation, and, as the evidence shows, followed it up diligently by making actual, beneficial use of the water prior to any other user or appropriator to the extent, as the evidence tends to show, of at least 200 cubic inches per second. He therefore, under the federal statute, supra, acquired title by appropriation to the water and to the right of way from the point of diversion through the unoccupied *Page 80 and unappropriated public land. This title was confirmed to him by the terms of the federal statute above cited."
The evidence introduced by defendant that the land was open, unoccupied and uninclosed in 1871, was sufficient to make a prima facie case that the land was then unappropriated public land. The record fails to disclose any substantial evidence to the contrary and we are of the opinion that the evidence was sufficient to support a finding that the land of plaintiff was unappropriated public land at the time the ditch was dug by the predecessors in interest of the defendant. This being so, the right of the defendant to the ditch is confirmed by the federal statutes.
There was no finding made by the court as to whether the land[5] of plaintiff was unappropriated public land in 1871. But, if no finding is made by the court on a fact necessary to support the judgment, such a finding will be implied. (Security StateBank v. McIntyre, 71 Mont. 186, 228 P. 618; Morehouse v.Northern Land Co., 68 Mont. 96, 216 P. 792.)
Counsel for plaintiff also contends that, if defendant ever[6] owned the ditch, he abandoned it in 1908 by changing the point of diversion, enlarging the ditch, and raising the embankments without the consent of plaintiff. The evidence on these issues is conflicting. The evidence offered on behalf of defendant was to the effect that there had been a flood in 1908, which widened the channel of the creek to such an extent that water could not be turned into the headgate, and thus it became necessary to move the headgate 15 or 20 feet to a narrower spot, and to run a box from the headgate into the ditch, crossing three or four feet of plaintiff's land upon the bank of the creek, and that the ditch was not enlarged, but only cleaned of debris, from time to time, that accumulated in it, and that whatever change was made in the embankments was the necessary result of cleaning the ditch.
It is well settled that a person having an easement in a ditch through the land of another may go upon the servient land and make all necessary repairs and clean the ditch. *Page 81 (9 R.C.L., p. 795; Holm v. Davis, 41 Utah, 200, 44 L.R.A. (n.s.) 89, 125 P. 403; Carson v. Gentner, 33 Or. 512, 43 L.R.A. 130, 52 P. 506.)
While there is evidence to the contrary, we think the evidence as a whole warrants the conclusion that the ditch has not been materially enlarged since its original construction in 1871, and that whatever changes were made from time to time in the embankments were those necessarily resulting from the enjoyment of the right to clean and repair the ditch.
We recognize the rule that the rights acquired by defendant by[7] virtue of the federal statutes, supra, do not give him the right materially to change the point of diversion after the intervention of rights acquired in the land by plaintiff's predecessors in interest. (Campbell v. Flannery, 32 Mont. 119,79 P. 702; Babcock v. Gregg, 55 Mont. 317,178 P. 284.) Under the view we take of the case, it is unnecessary to determine whether the change in the point of diversion was a material change, within the meaning of these decisions. While there is a conflict in the evidence, that offered on behalf of defendant shows that the headgate has been used by him continuously, openly and notoriously at the location where it existed at the time of the trial, without interference or molestation, since 1908. The court was justified under such circumstances in finding that the defendant's claim thereto, and to the small strip of land used in connection therewith, had been established by prescription. (Glantz v. Gabel, 66 Mont. 134,212 P. 858; Stetson v. Youngquist, 76 Mont. 600,248 P. 196.)
It is contended by counsel for plaintiff that, because of the[8] case of Lowry v. Carrier, 55 Mont. 392, 177 P. 756, the defendant may not rely upon the grant by the federal statutes, since it is inconsistent with the right of adverse possession set up in his answer. In that case the complaint, in separate counts, sought to claim ownership under both theories. The court held that the right by adverse possession is incompatible with the right acquired by virtue of the federal statutes. *Page 82 That this is so cannot be open to question. The court, however, held that since the suit was in equity, and all the evidence was before the court, the case would be decided on its merits, and, in effect, held that, if plaintiff had established his right under either theory, the judgment of the lower court should be affirmed. So we hold in this case, by reason of section 8805, Revised Codes of 1921.
When defendant proved that he owned the ditch because of the grant from the government, he was precluded from proving that he owned the same ditch by adverse possession, because there can be no adverse possession of property already belonging to the one claiming it. The headgate and strip of land used therewith, if changed materially in location since the predecessors in interest of plaintiff acquired an interest in the land now owned by plaintiff, would not belong to the defendant by virtue of the grant from the government, and hence title to that could be shown by adverse possession.
Plaintiff also contends that, since the answer alleges adverse possession of the ditch in question since 1871, the defendant cannot rely upon adverse possession for the statutory period since 1908 to establish title to any part of the ditch. With this contention we do not agree. In the case of Bogardus v. TrinityChurch, 4 Sandf. Ch. (N.Y.) 633-760, the court, in speaking of this question, said: "The defendants, in support of their plea, are bound to prove only its substance, and to such an extent as will maintain the bar which it interposes to the suit. To illustrate this proposition, I will suppose a bill filed at this time relative to a trust created in 1830, to which the trustee pleads that, for 15 years last past, he has done no act, nor admitted anything in respect of the alleged trust, and that the complainant is barred by lapse of time, by the provisions of the Revised Statutes. The limitation to such suits by those statutes is 10 years; and if, on an issue taken upon such a plea, it should appear that for 10 years before the suit there had been no act or recognition respecting the *Page 83 alleged trust, I apprehend that the plea would be sustained beyond a doubt."
The allegation that defendant was in the adverse possession of[9] the ditch in question continuously since 1871 is sustainable by proof that he was in the adverse possession thereof since 1908 for the period prescribed by statute, and defendant may rely upon the proof that he has had the possession of the headgate and the strip of land used in connection therewith for the statutory period since 1908 to establish title thereto by adverse possession.
Since, for the reasons above stated, we are of the opinion that the lower court was correct in awarding judgment to the defendant, it becomes unnecessary to decide whether the judgment should be sustained on other grounds. It is likewise unnecessary to consider the defendant's cross-assignments of error relating to the exclusion of evidence seeking to show that the ditch, referred to in the decree rendered in the case wherein Chris Lannen was plaintiff and G.C. Dahlberg was defendant, was the same ditch as that involved in this action.
The judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS, GALEN and FORD concur. *Page 84