#### TALBOTT et al., Respondents, *v.*BUTTE CITY WATER COMPANY Appellant.

(No. 1,256.)

(Submitted October 6, 1903.

Decided October 26, 1903.)

*Water Rights*— Appropriation—Adverse *User*— Landlord *and Tenant*— Estoppel—Instructions.

1. On an issue as to tlie rights of plaintiffs and defendant in the waters of a certain creek, plaintiffs alleged that defendant had leased the waters from them, and was estopped from claiming any adverse rights until the expiration of five years from the termination of the tenancy. Defendant claimed by adverse user. The testimony showed that, if the relation of landlord and tenant had ever existed, it was only for a few days, when the water was turned back to plaintiffs, and the relationship terminated. The court instructed the jury that, if the relationship of landlord and tenant had existed, there could be no adverse possession until the expiration of five years from the termination of the tenancy. *Held,*that the instruction was erroneous, as* Compiled Statutes 1887, Section 37, does not apply after the tenant delivers up possession, but only where the tenant is holding possession of the property obtained under the lease.

2. The court having admitted all testimony, and the cause having been one in equity, the error was harmless."

where a cause has been treated in the trial court as an equitable action, neither party can, on appeal, assume a position antagonistic to such theory.

4. Since the findings of the jury in a cause in equity are merely advisory, errors in instructions are harmless.

íí. No use of water by a subsequent appropriator can be said to. be adverse to the right of a prior appropriator unless such use deprives the prior appropriator of it when he has actual need of it.

0. The use of water may ripen into a right by adverse user. (Me. Justice Milbuisx dissenting.)

*Appeal from District Gowrt, Silver Sow County; John Lindr say, Judge.*

ActioN by Jamies. A. Talbott and others against the Butte City Water Company. From a judgment for plaintiffs, and from an order denying a new1 trial, defendant appeals.

Affirmed.

Statement oe the Case.

This action was brought by the plaintiffs (respondents) to secure a decree of the court, settling the relative rights of the *18parties to the use of the waters of the Black Tail Beer creek, in Silver Bow county, Montana, to tave the defendant restrained from diverting the waters of such creek from its natural channel, and for damages alleged, to* have heen caused by the acts of the defendant in depriving the plaintiffs of the use of the waters to which it is claimed they were entitled.

The plaintiffs Talbott and Thompson claim to be the prior appropriatorsi of aE the waters of Black Tail Deer creek, as against any claim of the defendant; and the plaintiff Bbyce claims to be the prior appropriator of 150 inches of such waters; as against any claim of the defendant. The plaintiffs further allege in their complaint that in 1886 the Basin Flume Company, the predecessor in interest of this defendant, leased the use of the waters of Black Tail Deer creek front this' plaintiff Talbott and one Olin, the predecessor in interest of the plaintiff Thompson; that thereby the relationship’ of landlord and tenant was created; and that the; defendant herein isi estopped from claiming any right adverse to the plaintiffs Talbott and Thompson until the expiration of five years from the termination of such tenancy.

The defendant answered, denying the; allegations of the complaint, and alleging that, if the plaintiffs ever had any right to the use of such waters, that right had been lost by abandonment prior to' the commencement of this action, and pleading affirmatively, first, that it is the prior appropriator of all the waters of Black Tail Deer creek; and, second, that prior1 to- the commencement of this action it had acquired title to the use of all the waters of said creek by adverse user.

The cause was tried to the court and jury, and numerous special interrogatories were submitted to the jury, and hy them answered. Upon the trial the court, among others; gave, at the request of the plaintiffs, instructions numbers *1*and 8, which read as follows: “No: 7. The court instructs the jury that, when the relation of landlord! and tenant has existed between any persons, the possession of the tenant is deeiped the possesr sion of the landlord, until the expiration of five years from the *19termination of the tenancy, or where there has been no. written lease, until the expiration of five years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title* or may have claimed to hold adversely to his landlord; but such presumption cannot be made after the periods herein limited. Bo. 8. The court instructs the jury that if they find from the evidence that the relation of landlord and tenant* as to the waters of Black Tail Deer creek, existed between Olin and Talbott, as owners, and the Basin Flume Company, as tenant, in the year 1886, as alleged in plaintiffs’ complaint, then there¡ can be no disseisin or adverse possession by the said Basin Flume Company, or by any party succeeding to- the possession, of said company, until the expiration of five years from the termination of said tenancy, or, if there was no written lease, until' the expiration of five years from the time of the last payment of rent, if rent for the use of the waters of Black Tail was paid”. — andl at the request of the. defendant gave an instruction, numbered 6, which reads as. follows: “No. 6. You are instructed, that where one who claims, by reason of adverse possession entered as tenant, but afterwards, returned the leased property- and thereafter re-enters and hold© adversely for the period of five years* that said re-entry and adverse holding vest the title in the claimant, and! that the period of adverse possession begins to run at the day of said re-entry, if the reentry is hostile and adverse to the interest of the real owner.”

All the special interrogatories, were answered in favor of plaintiffs* and the jury found that the plaintiffs had been damaged in the¡ sum of $1,073. The defendant afterwards stipulated- that the evidence is sufficient toi sustain that finding, but particularly disclaimed liability for the damages. Tho court adopted the findings of the jury, and entered a decree in favor of the plaintiffs, adjudging the plaintiffs Thompson and Talbott entitled toi the use of all the waters in Black Tail Deer creek appropriated in 1869, and the plaintiff Boyce entitled to> the use of 150 inches thereof appropriated in 1879, and that each of these appropriations is prior and superior to any right of the defendant to the use of any of the waters of said creek. From *20tbisi decree, and the order denying the defendant a new trial, these appeals are prosecuted.

*Mr. J. B. Boole,*and *Messrs. Forbis & Evans,*for Appellant.

This ease ivas tried on a. wrong theory; the landlord and tenant theory was entirely foreign to the issue joined, the permission of Olin to the diversion and use of the water by the Basin Munie Company, was only an, easement, and the relation of landlord and tenant could not, and cannot, under any conceivable state of facts, exist between any parties with respect to an easement. *(Swift et al.*v. *Goodrich el al.,*'TO Cal. 103; Angelí on Watercourses, Sec. 8; *Carrey*v. *Daniels,*5 Mete. 238; *Critten-don*v. *Alger,*11 Mete. 284; 1 Wash. Eeal Prop-. 310; Taylor on Land, and Ten. Sec. 699; Bing. Eeal. Prop. 17; *Tyler*v. *Willcenson,*4 Mason, 400; *Stein*v. *Burden,*29 Ala. (N. S.) 127, Sv c. 24 Ala. (N. S.) 130; *Burden*v *Stein,*27 Ala. (N. S.) 104; 2 Black. Com. 14 and 18; 3 Kent Com.( 3d Ed.) 434, 439, 441; Civil Code of Napioleon, Art. 640 ; *Hazard*v. *Robinson,*3 Mason, 277; Civil Code of Montana, Secs. 1250, 1251.)

The question might naturally arise,- — can this court consider this question, raised for the first time on appeal, and not hitherto having been broached, nor even thought of? Again, will this court permit a change of front at this, late date ? Has not the appellant, by its participation in the error complained of, waived its right to- raise the. question now- ? And is it not estopped from doing so? -And is it guilty of a breach of faith in this radical change of front? We think all of these questions, are satisfactorily answered by the following cases,: *Wiggins Ferry Co.*v. *O. & M. By-,*142 IT. S. 396; *Hubbard*v. *Sullivan,*18 Cal. 525; *Ward*v. *Craig,*87 N. T. 550; *Kenner*v. *Creditors,*8 Martin (N. S.) La. 51; *Watts*v. Waddle, 6 Pet. 389; *Walden*v. *Bodley,*14 Pet. 156; *Neale*v. *Neales,*9 Wall. 1; *Handin*v. *Boyd,*113 IT. S. -765 ; and see, also-, Hayne on New Trial & Appeal, Sec. 279; Code of Civil Proc. See. 21; 2 Einov. PL *&*Pr. 372.

*21Tbe appellant acquired title to> the water in dispute by prescription. *(Hesperia L. &*W. *Go.*v. *Rogers,*83 Cal. 10; *Union Water Company*y. *Crary,*25 Cal. 501; *Woolman*v. *Garringer,*1 Mont. 544; *Davis*v. *Gale,*32 Cal. 35 ; *Evans*v. Boss, 8 Pac. 88; *Bealy*v. *Shaw,*6 East. 208; *Balston*v. *Bensted,*1 Camp. 463; *Richard*v. *Williams,*7 Wheat. 59; *Williams*v. *Nelson,*23 Pick. 141; *Calvin*v. *Burnett,*17 Wend. 564; *Hammond*v. *Zehner,*23 Barb. 473; *Campbell*v. WiZso», 3 East. 294; *Tyler*y. *Wilhenson,*4 Mason, 397; *Gallagher*y. WaZer Co., 35 Pac. 770; Comp. Stats. Mont. 1887, Secs. 29, 30, 32, 33; *Smith*v. *Logan,*1 Pae, 678; *Lw*v. *Haggim,*4 P'ac. 919; *Spargur*y. *Heard,*27 Pac. 198; *Jatunn*v. *Smith,*30 Pac. 200; *Huston*y. *Bybee,*20 Pac. 51; WaZer Co. y. *Richardson,*14 Pae. 379; *Arthurs*y. *Bryant,*38 Pac. 439; *Smith*v. *Greene,*41 Pac. 1022; *Humphreys*v. *Blasingame,*37 Pac. 804; *Richard*v. *Hupp,*37 Pae. 920; *Cowell*y. *Thayer,*5 Mete. 253, s. c. 38 Am. Dec. 400; *Messenger’s Appeal,*109 Pa. St. 290; *Garrett*v. *Jaclcson,*20 Pa. St. 331; *Swift*v. *Goodrich,*70 Cal. 103, s. c. 11 Pac. 561; 28 Am. & Eng. Eney. of Law, 1002 eZ seg'.; *Bolivar Mfg. Co.*y. *Neponsei Mfg. Co.,*16 Pick. 241; *Lehigh Valley R. Co.*v. *McFarlan,*43 N. J. Law, 62S; *Powers*v. *Osgood,*102 Mass. 454; *Cornwell*v. *Swift,*S9 Mich. 503; BaZZ v. *Swift.*4 Bing. N. Cas. 381; *Gerenger*y. *Summers,*2 Lnd. (N. C.) 229 ; Angelí on Watercourses, 362; *Perrin*v. *Garfield,*37 Vt. 310; Gale and AVhat. on Easements, 84; *Alta Land & Water Co.*y. *Handcoclc,*85 Cal. 219; *Davis*v. GaZe, 32 Cal. 26; Ann Co. y. *Bradford,*27 Cal. 3 61; 3 Kent Com. 441 to 446; *Shaw*y. *Crawford,*10 John. 236; *Johns*v. *Stevens,*3 Vt. 316; *Crandall*y. Wood!s, 8 Cal. 136; CAu v. *Clough,*70 Cal. 345 ; if aso» y. *Hill,*3 Barn & Adolph, 304; *Buddmgton*y. *Bradley,*10 Conn. 213; *Baldwin*y. *Callcins,*10 Wend. 167; *Barbour*v. *Pierce,*42 Cal. 657.)

Messrs. *McBride & McBride,*for Respondents.

The attempted defense of action, barred and of adverse possession, are entirely untenable and without merit in this action. *(Anhei/m- Water Co.*v. *Semi-Tropic Water Co.,*64 Cal. 192; *Mining Co.*v. *Perris,*Eed. Cases No. 14,271.)

*22• “The words ‘land’ or ‘lands’ and tbe words ‘real estate’ shall 'be construed to include lands, tenements and hereditaments and all rights thereto and all interests therein.” (Sec. 145, Subd. 5, Revised Sta.t.>of .1879; Sec. 202, Subd. 5, page 648, Compiled Stat. of 1887.)

“Easements” are held to be within the term “land” in the following eases: *'Farmers’ L. & T. Go.*v. *Ansonia,*61 Conn. 85; *State*v. *Railroad Gornfrs,*56 Conn. 308; *New Haven*v. *Fair Haven, etc. R. Go.,*38 Conn. 430; *Ray*v. *Sweeny,*14 Bush (Ky.) 1; *Freeholders*v. *Red Bank, etc. Turnpike Go.,*18 N. J. E!q. 91; *Brower*v. *Tichenor,*41 N. J. L. 345; *White-river Turnpike Go.*v. *Vermont Central R. Go.,*21 Vt. 597; *Boston Water Power Go.*v. *Boston, etc. R. Corp.,*23 Pick. (Mass.) 395; *Filis*v. *Welch,*6 Mass. 246; *Parks*v. *Boston,*15 Pick. (Mass.) 203.

Ejectment will lie to recover a ditch and water rights. *(Integral Q. M. Go.*v. *Altoona Q. M. Go.,*75 Eed. 380, 382, 383 and 384; *Reed*v. *Spicer,*27 Cal. 58; *Canal Go.*v. *Kidd,*37 Cal. 282; *Mitchell*v. *Mining Go.,*75 C'al. 464, s. c. 17 Pac. 246.)

The ditch and water right were certainly the subject of lease and the relation of landlord and tenant could exist as to such property. *(Integral Q. M. Go.*v. *Altoona Q. M. Go\,*75 Eed. 380; *Reed*v. *Spicer,*27 Cal. 5; *Ganal Go.*v. *Kidd,*37 Cal. 282; *Mitchell*v. *Mining Go.,*75 Cal. 464, s. c. 17 Pac. 246; Sec. 145, Subd. 5, Revised Stat. of 1879; Sec. 202, Subd. 5, page 648, Compiled Stat. of 1887; *Farmers’ L. & T. Go.*v. *An-sonia,*61 Conn. 85; *State*v. *Railroad Gom’rs,*56 Conn. 308; *Neiu Haven*v. *Fain Haven, etc. R. Go.,*38 Conn. 430; *Ray*v. *Sweeney,*14 Bush. (Ky.) 1; *Freeholders*v. *Red Bank, etc. Turnpike Go.,*18 N. J. Eq. 91; *Brower*v. *Tichenor,*41 ,N- K L. 345; *Whiteriver Turnpike Go.*v. *Vermont Gentral R. Go.,*21 Vt. 597; *Boston Water Power Go.*v. *Boston, etc. R. Gorp.,*23 Pick. (Mass.) 395; *Ellis*v. *Welch,*6 Mass. 246; *Parks*v. *Boston,*15 Pick. (Mass.) 203.)

Even if, under the facts as disclosed by the record of this *23case, the relation existing between Ólin and Talbott and the Basin Flume Company technically was incorrectly designated as the relation of landlord and tenant, the appellant not having raised the question in the district court, but on the contrary having given testimony and; ashed instructions on the theory that such relation existed, will not be heard to complain of the action of the district court in acquiescing in and acknowledging the existence of such relation conceded to exist by both plaintiff and defendant. *(Davis et al.*v. *Jacoby,*55> N. W. Rep. 908; *Leavenworth N. & 8. Go.*v. *Curtan,*33 Pac. 297.)

The supreme court will not review an error of law not raised in the district court. *(Tuttle*v. *Merchaoits’ NatT Bank,*19 Mont. 11.)

Use of water by a subsequent appropriator at times when the ■water is not needled by a prior appropriator will not ripen into a prescriptive title. (Bong on Irrigation, Sec. 90, plage 159; *Union Mill. <& Min. Co.*v. *Ferris,*2 Savvy. 176; *Anheim Water Co.*v. *Sémi-Tropic Water Co.,*64 Cal. 185; *Lakeside Ditch Co.*v. *Crane,*80 Cal. 181; *Jensen*v. *Hunter,*41 Pac. 14, 16, 17; *Faulkner*v. ILodoni, 37 Pac. 883, 886; *Smith*v. *Hope M. Co.,*18 Mont. 442; *Hargrave*v. *Cook,*108 Cal. 72, 41 Pac. 18.)

“No adverse user can be initiated until the owners of the water right are deprived of the benefit of its use in such a substantial manner as to notify them that their rights are being invaded.” *(.Bowman*v. *Bowman*(Ore. 1899), 57 P'ac. 546; *Boyce*v. *Cupper*(Ore. 1900), 61 Pac. 642.)

“Prom these principles it follows, that no prescriptive right, to water can be acquired by the use thereof by: permission or sufferance of the owner, who> continues to exercise domain over it.” *(Crawford*v. *Minnesota & M. Land*<£• *Imp. Co.,*15 Mont. 153, 3S Pac. 713; *Egan*v. *Estrada*(Ariz. 1899), 56 Pac. 721; *Bathgate*v. *Irvine*(Cal. 1899), 58 Pac. 442.)

“So, also, where there is sufficient water in the stream to supply the wants and demands of all the parties., its use by one cannot. be an invasion of the rights of any other, and hence cannot *24be the foundation of any prescriptive claim’.’ *(Egan*v. *Estrada*(Ariz. 1899), 56 Pac. 731; *Anheim Water Go.*v. *Semi-Tropic Water*Co., 64 Cal. 185, 30 Pac. 623; *Olmrck*v. Stillwell, 12 Colo-. App. 43, 54 Pao. 395; *North Powder Milling Go.*v. *Gonghanour*(Ore.), 54 Pac. 223.)

ME,. JUSTICE HOLLOWAY,

after stating''the case, delivered the opinion of the court.

Only two questions are discussed in the brief, and only those will be considered:

(1) Did the trial court err in its instructions- to the jury, and, if so-, was the error prejudicial? (2) Did the defendant establish a right to the use of the waters-of Black Tail Deer creek by adverse user ?

1. It is contended that the court erred in its instructions with reference to the question of the relationship- of landlord and tenant, alleged to have; existed between thei Basin Flume Company, predecessor in interest of tire defendant water corn-company, and Olin. and Talbott, predecessors- of Talbott and Thompson, two of the plaintiffs.

Instruction No. S, above, given at the instance of the plaintiffs, and No. 6, above; given, at the instance of the defendant, are absolutely contradictory. Section 37, First Division, Compiled! Statutes- of 18S7, is copied in instruction No. 7, above. The construction given this section by the court in instruction No. 8, above, is clearly erroneous. The section deals with the question of possession, while the instruction erroneously applies the doctrine to- the *relationship*of landlord and tenant. Under that section, so long as the tenant is holding *possession*of property obtained from his landlord while the relationship of landlord and tenant exists, the- doctrine of the section applies; but, as soon as the tenant delivers up his possession and the relationship is fully terminated, the section ceases to- have any application, and an adverse holding can therefore be immediately initiated by a hostile re-entry into such possession.

*25The testimony shows that, if the relationship of landlord and tenant ever existed at all, it existed only for a few days in 1886, when the water was turned back to* the predecessors of plaintiffs, and the relationship! fnl-ly terminated.

However, that error is Avithout prejudice in this instance, for, notwithstanding such, instructions, the court had admitted all the testimony offered on behalf of the defendant tending to prove its adverse user; at least, no complaint is hero made that any testimony offered in that behalf Avas excluded. The matter AA-as treated in the district court throughout as a suit in equity. In fact, the opening’ statement in appellant’s brief is, “This is an equitable action.” And Avithout disposing’ of the question Avhether in fact it is an action at law, or a suit in equity, it is sufficient to say that when a cause has been, tried upon a certain Avell-defined theory, neither party Avill be heard in, this court, on oral argument, for the first time, to assume a position antagonistic to such theory. *(Harris*v. *Llloyd,*11 Mont. 390, 28 Pac. 136, 28 Am. St. Rep. 475; *Leavenworth N. & S. Co. v. Curtan,*51 Kan. 432, 33 Pac. 297; *Davis*v. *Jacoby,*54 Minn. 144, 55 N. W. 908.) .

Assuming, then, that the cause AA'as one in equity, the findings of the jury are merely advisory to the court, and errors in instructions given to the jury are Avithout prejudice. *(Lawlor v. Kemper,*20 Mont. 13, 49 Pac. 398; *Haggin*v. *Saile,*23 Mont. 375, 59 Pac. 154; *Wetzstein*v. *Largey,*27 Mont. 212, 70 Pac. 717.) In this instance the whole matter of the relationship* of landlord and tenant, upon, Avhich, the erroneous instructions Avere given, can be entirely eliminated from consideration. The allegations of the complaint with reference to it Avere insufficient to constitute a plea of estoppel, and the consideration given the subject by the trial court so completely failed to affect in any manner the substantial merits of the controversy that it is, not deemed necessary to remand the cause in order that all reference to, it be eliminated from the decree: No contention is made here that any evidence Avas offered on behalf of the defendant tending to establish its right by prior appropri*26ation. The plaintiffs apparently relied upon their claim as prior appropriators, and the defendant upon title by adverse user.

2. The testimony offered on behalf of the defendant shows that for five yea^s prior to the commencement of this action the defendant and its predecessor in interest had used some, and at certain times all, of thei waters of Black Tail Deer creek, at least a portion of every year; but there is no> showing whatever that such use was had at any time when these plaintiffs had need of the water, or that the use of the water by the defendant interfered with its use by the plaintiffs prior to the year 1891, while this action was commenced in 1893. In order that the use of the water by the defendant company might ripen into a right by1 adverse user, as against the plaintiffs, such use must have been open, notorious, continuous, adverse and exclusive, under’ a claim of right. (Long on Irrigation, Sec. 90, p. 160; *Cox*v. Clough, 70 Cal. 345, 11 Pac. 732.) It is not sufficient for defendant company to show that its use of the water was open, notorious and continuous, but it must show that such use was adverse — that is, its use of the water must have been such an invasion of plaintiffs’ right to its use, as that they could have maintained an action against the defendant for such invasion; and such adverse use must have been continuous for a period of time equal to' the period of the statute of limitations, which in this instance was five years. *(Yankee Jim's Union Water Co.*v. *Crary,*25 Cal. 504, 85 Am. Dec. 145.) This doctrine is too well established now to- be open to serious controversy. (Long on Irrigation, Sec. 90; *Faulkner*v. Rondoni, 104 Cal. 140, 37 Pac. 883; *Smith*v. Logan, 18 Nev. 149, 1 Pac. 678 ; *Alta L. & W. Co.*v. Hancock, 85 Cal. 219, 24 Pac. 645, 20 Am. St. Rep. 217.)

The plaintiffs had use for thei water only for agricultural and mining purposes, and, when not so using it, the law required them to turn, it back into' the stream for the use of this defendant, or any other person or corporation which might have a right to its use. No' irse of water by a subsequent appropriator can *27bo said to be adverse to the right of a prior appropriator, unless such use deprives the prior appropriator of it when he has actual need of it. To take the water when the prior appropriator has no use for it, invades no¡ right of his> and cannot even initiate a claim adverse to him. “When there is sufficient water in the river to supply all parties, there can be no such thing as adverse use of the water to start thei statute of limitations running. Each is entitled to the use of the xvater, and it is- only xvhen the xvater becomes so scarce that all of the- parties cannot be supplied, and that one appropriator takes water which by priority belongs to another appropriator, that there is an adverse use.” *(Egan*v. *Estrada*(Ariz.), 56 Pac. 721; *Anaheim Water Company v. Semi-Tropic Water Company,*64 Cal. 185, 30 Pac. 623.)

The evidence introduced on behalf of the plaintiffs tended to show! that they had sufficient xvater to- supply their, needs until 1891. The evidence failed to establish á right in the defendant to the use of the xvater by adverse user, while it is amply sufficient to sustain the findings of the1 court that the plaintiffs are prior appropriators, and, as such, entitled to- the use of the water as against any claim of the defendant.

The judgment and order appealed from are affirmed.

*Affirmed.*

Mr. Justice MilbueN:

I concur in the conclusion reached by Mr. Justice Holloway, that the judgment of the loxver court must be affirmed. I do-not think it necessary, hoxvever, under the circumstances of thistoase, to decide now that a water right can, be obtained by adverse user. If there be such a thing as a xvater right not obtained in the xvay expressly provided by the Code for the acquiring of á water right — that is, by actual appropriation, ¡pasting notice, filing and recording declaration in xvritmg, etc. — but obtained by adverse use, such acquirement by adverse use xvas not proven in the case at bar. Eor this reason, the defendant could not prevail against the plaintiffs. This simple statement, in my opinion, should be sufficient, with*28out undertaking now to settle tire unnecessary question; that is, whether a water right can be obtained by adverse use. I am not inclined to the belief that it can be so acquired.