SCHWEND v JONES
Annotate this Case
Download PDF
No. 12535 I N THE SUPREME COURT O THE STATE O M N A A F F OTN 1973 ALBERT SCHWEND, CHARLES SCHWEND, LESLIE SCHWEND and MARVIN SCHWEND, P l a i n t i f f s and Respondents, N L JONES, e t a l . , OA Defendants and A p p e l l a n t s . Appeal from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable C. B. Sande, Judge p r e s i d i n g . Counsel o f Record: For Appellants : Berger , Anderson, S i n c l a i r a.nd Murphy, B i l l i n g s , Montana James J. S i n c l a i r a r g u e d , B i l l i n g s , Montana F o r Respondents: Ayers and A l t e r o w i t z , Red Lodge, Montana A r t h u r Ayers a r g u e d , Red Lodge, Montana Submitted: Filed : OCT 2 4 1973 September 1 2 , 1973 Decided :OCT 2 4 1973 Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This is an action seeking a declaratory judgment determining ownership of water rights between the purchasers and the seller of farm land under a contract for deed. The district court of Carbon County, the Hon. C. B. Sande, district judge, sitting without a jury, entered judgment for the purchasers. The seller appeals from that judgment. Plaintiffs and respondents are the contract purchasers, Albert, Charles, Leslie and Marvin Schwend. lant is Nola Jones, the contract seller. Defendant and appel- The other defendant, Lincoln Ditch Company, a corporation, is not a party to this appeal. In 1965 appellant and respondents entered into a written farm lease covering about 180 acres of land in Carbon County, Montana. The farm lease contained an option to purchase. A dispute arose between appellant and respondents resulting in a lawsuit in the district court of Carbon County, # 7 0 5 4 , entitled Nola Jones, plaintiff v. Albert Schwend et al., defendants. Following trial without jury, the Hon. Charles Luedke, district judge, entered findings of fact, conclusions of law and a decree. These provided, inter alia, that the farm lease and option agreement was valid; that the Schwends were entitled to immediate possession of the property, specific performance of the option, and a written contract for deed covering approximately 180 acres of farm land and "the hereditaments and the appurtenances thereunto belonging." A written contract for deed was executed by the parties and approved by the court which described the land but did not refer to hereditaments, appurtenances or water rights. Subsequently respondents Schwend moved to amend the contract for deed in two particulars: (1) to include a description of a 14 acre tract meant to be described and included but which was o m i t t e d due t o a s c r i v e n e r ' s e r r o r ; (2) t o include certain w a t e r r i g h t s evidenced by s h a r e s of s t o c k i n t h r e e s e p a r a t e d i t c h companies. Judge Luedke g r a n t e d t h e f i r s t motion nunc p r o t u n c , b u t d e n i e d t h e motion f o r i n c l u s i o n of t h e w a t e r r i g h t s and w a t e r s t o c k i n t h e s a l e , s t a t i n g i n a memorandum accompanying the ruling: "With r e s p e c t t o t h e w a t e r s t o c k , however, no i s s u e a r o s e d u r i n g t h e c o u r s e of t h e t r i a l a s t o w a t e r and no e v i d e n c e was o f f e r e d c o n c e r n i n g water r i g h t s o r water stock. Consequently, n o t h i n g was i n c l u d e d i n t h e C o u r t ' s F i n d i n g s and C o n c l u s i o n s e x c e p t t h a t t h e l a n d Defendants were e n t i t l e d t o p u r c h a s e c a r r i e d w i t h it ' h e r e d i t aments and t h e a p p u r t e n a n c e s t h e r e u n t o b e l o n g i n g . ' T h i s would i n c l u d e w a t e r r i g h t s and w a t e r s t o c k which a r e a p p u r t e n a n t t o t h e l a n d , b u t whether any s p e c i f i c r i g h t t o water i s o r i s not appurtenant t o any s p e c i f i c l a n d i s a q u e s t i o n of f a c t . ( C i t a t i o n ) With no e v i d e n c e h a v i n g been o f f e r e d , t h e C o u r t c o u l d n o t a t t h e t i m e o f t r i a l make any f i n d i n g c o n c e r n i n g w a t e r and w a t e r r i g h t s and i t c a n n o t d o s o now." N a p p e a l was t a k e n i n c a u s e # 7 0 5 4 . o T h e r e a f t e r r e s p o n d e n t s Schwend f i l e d a n o t h e r s u i t i n t h e d i s t r i c t c o u r t o f Carbon County, b e i n g c a u s e # 7 3 8 4 e n t i t l e d A l b e r t Schwend e t a l l p l a i n t i f f s v . L i n c o l n D i t c h Company, a c o r p o r a t i o n , and Nola J o n e s , d e f e n d a n t s . T h i s was a n a c t i o n by t h e c o n t r a c t p u r c h a s e r s t o e s t a b l i s h t h e i r b e n e f i c i a l ownership of t h e w a t e r r i g h t s and w a t e r s t o c k under t h e c o n t r a c t f o r deed. The b a s i s of p l a i n t i f f s ' c l a i m f o r r e l i e f w a s t h a t s u c h w a t e r r i g h t s were a p p u r t e n a n t t o t h e l a n d and a s t h e r e were no r e s e r v a t i o n s i n t h e c o n t r a c t f o r deed, t h e water r i g h t s passed w i t h t h e land. Defefid- a n t s f i l e d s u b s t a n t i a l l y a g e n e r a l d e n i a l and p l e a d e d a s a n a f f i r m a t i v e d e f e n s e t h a t t h e c o m p l a i n t s h o u l d be d i s m i s s e d a s res j u d i c a t a . The f o l l o w i n g s t i p u l a t i o n s of f a c b i n t e r a l i a , w e r e made by t h e r e s p e c t i v e p a r t i e s i n # 7 3 8 4 : (1) t h a t Nola J o n e s was r e g i s t e r e d owner of t h e w a t e r s t o c k ; (2) t h a t t h e water r i g h t s r e p r e s e n t e d by t h e s t o c k w e r e b e n e f i c i a l l y used upon t h e l a n d s in question; (3) that aside from collateral estoppel, the only issue is whether the contract for deed conveyed the water rights evidenced by the stock. Following trial without a jury, Judge Sande entered a decree that the shares of stock of Nola Jones in the ditch companies are included in the property sold and purchased under the contract for deed between appellant and respondents, and that respondents are beneficial owners thereof. Nola Jones appeals from this decree. Two issues are assigned for review: (1) Were the water rights owned by Nola Jones, which were evidenced by the shares of stock the ditch companies, sold under contract for deed? (2) Does collateral estoppel bar plaintiffs1 claim for relief in the second suit (#7384)? Directing our attention the first issue, hold that the water rights of Nola Jones were appurtenant to the land sold under contract for deed. In cause #7384, it was stipulated: " .* * * the water rights represented by the water stocks * * * were beneficially used on the lands which are the subject of the contract for deed * * *." Section 67-211, R.C.M. 1947 states: "A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit * * *." The findings of the court in #7054 specifically provide for the the sale of the land and "the hereditaments and/appurtenances thereunto belonging" and the decree orders specific performance of the option to purchase in conformity with the findings. As the water rights were appurtenant to the land sold, we hold that the contract for deed effectively conveyed beneficial ownership in the water rights evidenced by the shares of stock in the ditch companies in the absence of an express reservation or exception. Maclay v. Missoula Irr. Dist., 90 Mont. 344, 3 P.2d 286. Section 67-1523, R.C.M. 1947 reads: "The transfer of a thing transfers also all its incidents, unless expressly excepted * * *." Under both Montana codes and at common law whoever grants a thing tacitly grants that without which the grant would be of no avail -- a grant of the principal thing carries with it a grant of the incident. Yellowstone V. Co. v. Asso. Mtg. Investors, 84 1 88 Mont. 73,/290 P. 255, 70 A.L.R. 1002. If the water rights are appurtenant to the land, the fact that such water rights are evidenced by shares of stock in a ditch company does not change the rule. Yellowstone V. Co. v. Asso. Mtg. Investorst supra; 45 Am Jur 2d, Irrigation, S 48. The controlling principle was succinctly expressed in Yellowstone Valley: " * * * The owner of land with an appurtenant water right may, by appropriate conveyance, convey the land to one person and the water right to another. But, if he conveys the land without reservation, he also conveys the appurtenance and whatever is incidental to the land. He therefore conveys the appurtenant water rights, unless he expressly reserves them. * * * " Passing on to the second issue, the seller Jones contends that the second suit (#7384) is barred as the issue of water rights is res judicata, having been decided adversely to the purchasers in the first suit (#7054). She contends that the decree in the first suit (#7054) collaterally estops an adjudication of water rights in the second suit (#7384). In our view appellant's position lacks merit. R.C.M. 1947, 93-1001-23/provides: Section "That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto." "As far as subsequent proceedings under a different cause of action are concerned, the doctrine of res judicata is held not to apply to issues raised in the previous case which were not passed on by the court or jury in deciding it." 46 Am Jur 2d, Judgments, ยง 419, and cases listed in footnote 3. Here the district court in the first case (#7054) refused to adjudicate water rights as such issue was beyond the scope of the controversy presented to it, so the decree in the second case e 7 3 8 4 ) adjudicating this issue was the first judicial determination thereof. For the foregoing reasons, the judgment of the district court is affirmed. --------%dL:g-Qd.' Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
