Hansen v. Galiger , 123 Mont. 101 ( 1949 )

I concur in what is said in the foregoing opinion on the subject of the dismissal of the appeal as to Kathryn Pankey. I disagree with the holding of my associates that the injunction pendente lite was properly denied.

The only issue before the court was whether plaintiffs under the facts presented could employ modern methods of cleaning the ditch in question or whether they must do it by hand or with horses as in former years. Plaintiffs desired to make use of a drag line for that purpose.

Defendant Mike Galiger testified: "They can go in any time they wanted to and clean it. Clean the ditch by horse or by hand any time they can do it."

The case did not involve the extent of the water rights of the respective parties.

Defendant Mike Galiger's testimony that his ditch paralleling the one in question here would be filled by use of the drag line rests entirely upon speculation. According to plaintiffs' evidence there would be no interference with his paralleling ditch. The injunction order which I think should have issued could have guarded against such contingency. It should have expressly provided that plaintiffs may use the drag line only in the event that it may be used without interfering with defendants' paralleling ditch. There was also some testimony as to cottonwood trees. If it was thought proper and necessary that the life of the trees be spared the injunction order could likewise have so provided. That we can still cling to the horse and buggy days has been denied by those in high authority. I think one owning an easement for ditch rights, as do the plaintiffs here, has the right to employ modern methods and means of cleaning the ditch. Compare Matteodo v. Capaldi, 48 R.I. 312, 138 A. 38, 53 A.L.R. 550; and Laden v. Atkeson, 112 Mont. 302, 116 P.2d 881, particularly where it may be done without injury to another.

And the complaint charging as it does that defendants' acts of interference with plaintiffs' rights have been and are continuous, I think is sufficient to state a cause of action for injunctive relief for the rule is that "Repetition of the trespass, necessitating a multiplicity of actions, in itself may render the legal remedy inadequate." Union Central Life Ins. Co. v. Audet, 94 Mont. 79, 21 P.2d 53, 56, 92 A.L.R. 571. And, "As the case is one to restrain continuous trespass and avoid a multiplicity of suits, it is not material whether the defendant is or is not insolvent." Thrasher v. Hodge, 86 Mont. 218,283 P. 219, 222. The complaint in my opinion is sufficient to state a cause of action for injunctive relief and the evidence without conflict supports the allegations of the complaint. I think the order appealed from should be reversed.

Rehearing denied July 23, 1949.