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[60 Mont. 510.]

[2, 3] an action lie to quiet title to an easement as against a defendant in exclusive use of it?

Section 4515, Revised Codes, provides that the owner of a dominant estate may maintain an action for the enforcement of an easement attached thereto, but the character of the action is not indicated. Section 6870, as amended by Chapter 113, Laws of 1915, provides: "An action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons, both known and unknown, who claim or may claim any right, title, estate, or interest therein, * adverse to plaintiff's ownership.

All actions brought under this section must be brought in the county in which the real estate or a portion thereof, as to which the title is sought to be quieted, is situ ated."

Like statutes have been enacted in many states, and they have been held generally to enlarge greatly the jurisdiction formerly exercised by courts of equity to quiet title or remove clouds. The purpose of such a statute is to afford an easy and expeditious mode of quieting title to real estate, and it is altogether immaterial that plaintiff is out of actual possession. (5 R. C. L. 643.)

The present action is brought under amended section 6870 above, and may be maintained if that section is sufficiently comprehensive to include an action to quiet title to an easement. What, then, is the character of the easement in question?

Section 4425, Revised Codes, declares that real property includes land and that which is incidental or appurtenant to land. An easement is an appurtenance to land (Smith v. Denniff, above) and constitutes an interest in real property. under all the authorities (Northern Pac. R. R. Co. v. Carland, 5 Mont. 146, 3 Pac. 134). The plaintiff then claims title to

60 Mont.-88

[60 Mont. 510.]

an interest in real property to which defendant asserts an adverse claim. Is that interest sufficient to bring the plaintiff within the meaning of amended section 6870? Clearly, the statute does not exclude everyone except the holder of a fee simple title. Like statutes have been construed by the courts frequently, and it is the prevailing opinion that under such a statute as ours the owner of any estate or interest in land of which the law takes cognizance is entitled to have any claim adverse to his interest, such as it is, determined, and the title quieted. (German-American Sav. Bank v. Gollmer, 155 Cal. 683, 24 L. R. A. (n. s.) 1066, 102 Pac. 932; 5 R. C. L. 646.) Under a statute substantially the same as our own above, the supreme court of Indiana held that an adverse claim to an easement may be determined and the title quieted. (Davidson v. Nicholson, 59 Ind. 411.) This court, without considering specifically the question now under review, has recognized the right of a claimant to an easement to maintain an action to quiet title under the statute above in two instances at least. (Cottonwood Ditch Co. v. Thom, 39 Mont. 115, 101 Pac. 825, 104 Pac. 281; McDonnell v. Huffine, above.) No decided case holding directly to the contrary has been called to our attention.

The difficulty of making the decree effective is suggested as a reason for denying the application of the statute to a case of this character; but with that feature we are not directly concerned upon this appeal. Whether it shall be enforced by a writ of restitution apparently authorized by section 6849, Revised Codes, and declared to be appropriate by the supreme court of California (Landregan v. Peppin, 94 Cal. 465, 29 Pac. 771), or by injunction, mandatory or prohibitory in character, as incidental to the principal relief sought (32 Cyc. 1381), we do not determine. The statute appears to be sufficiently broad to comprehend an action to quiet title to an easement, and, further, we are not called upon to go at this time. The cause should be determined upon the merits, and to that

end the judgment and order are reversed, and the cause is remanded for a new trial.

Reversed and remanded.

ASSOCIATE JUSTICES REYNOLDS, COOPER and GALEN concur.

MR. CHIEF JUSTICE BRANTLY dissents.

Rehearing denied September 17, 1921.

STATE EX REL. BAIRD ET AL., RESPONDENTS, v. ANDERSON, JUSTICE OF THE PEACE, APPELLANT.

(No. 4,404.)

(Submitted June 7, 1921. Decided July 1, 1921.)

[199 Pac. 720.]

Certiorari-Justices' Courts-Satisfaction of Judgment-Subsequent Annulment Error.

1. Where a judgment rendered by a justice of the peace in an action on a promissory note and an open account had been satisfied by sale of personal property under execution, and thus ceased to exist, the district court, on certiorari, was without power to annul and set it aside as having been entered without jurisdiction.

Appeal from District Court, Yellowstone County; S. C. Spencer, Judge.

CERTIORARI by the State, on relation of Robert Baird and another, against Ray Anderson, Justice of the Peace of Billings Township, Yellowstone County, to review a judgment for plaintiff in an action by J. S. Haley against relators. Judgment for relators and respondent appeals. Reversed and remanded, with directions to set aside the judgment and dismiss the certiorari proceedings.

Mr. J. Henry Nibbe and Mr. Geo. W. Pierson, for Appellant, submitted a brief; Mr. Pierson argued the cause orally.

[60 Mont. 515.]

Mr. James L. Davis, for Respondents, submitted a brief; Messrs. Waldo & Cunningham, of Counsel; Mr. Wm. B. Waldo argued the cause orally.

MR. JUSTICE REYNOLDS delivered the opinion of the

court.

One J. S. Haley brought his action before defendant, as justice of the peace, against relators, upon a certain promissory note and open account. The cause was brought on for trial February 21, 1918, and upon the 25th of that month judgment was entered in favor of plaintiff. On the twentieth day of March, 1918, relators caused writ of review to be issued out of the district court to which return was made by defendant on the next day. On the first day of March, 1918, execution was issued and sales of personal property were had upon the fifteenth and twenty-first days of that month, respectively. By reason of the execution sales, sufficient proceeds were realized to satisfy the judgment, and on March 21 the judgment was satisfied, and acknowledgment of such satisfaction entered upon the docket by the attorney for plaintiff, all of which appeared in defendant's return to the writ of review.

Respondents contend that the judgment was entered without jurisdiction for several reasons; but, in view of the fact that the case must be reversed on another ground, it will be unnecessary for us to consider these jurisdictional questions.

The facts of this case as to the satisfaction of the judgment [1] and issuance of writ of review are identical with those disclosed in the case of State ex rel. Reynolds v. Laurendeau, 27 Mont. 522, 71 Pac. 754. In that case this court held that the district court could not make and enter a judgment annulling and setting aside a judgment of the justice of the peace, which was not then in existence as shown by the record before it. The reason for the holding is apparent, for if the judgment has been satisfied, it has ceased to exist, there is nothing to review, and there is nothing in the record from which defendant needs any relief. If the judgment was entered without

jurisdiction, and therefore was void, it was void for all purposes, and a judicial declaration to that effect after its satisfaction on the record could serve no good purpose. Under the authority of that case we must hold that the district court erred in entering the judgment from which the appeal was taken.

The judgment is reversed and the cause remanded, with directions to the lower court to set aside the judgment made and entered on the fourth day of April, 1918, and dismiss the certiorari_proceedings.

Reversed and remanded.

MR. CHIEF JUSTICE BRANTLY and ASSOCIATE JUSTICES COOPER, HOLLOWAY and GALEN concur.

LE MUNYON, RESPONDENT, v. GALLATIN VALLEY RAILWAY CO., APPELLANT.

(No. 4,425.)

(Submitted June 9, 1921. Decided July 1, 1921.)

[199 Pac. 915.]

Waters and Watercourses-Obstruction-Railroad Embank ments-Surface Waters.

"Watercourse"-Definition.

1. A "watercourse" is a living stream with defined banks and channel, not necessarily running all the time, but fed from other and more permanent sources than mere surface water.

Waters and Watercourses-Surface Waters--Obstruction by Railroad Embankment-When Defendant not Liable for Damages.

2. Under the common-law rule of liability for the obstruction of surface waters, in force in this state in the absence of statute providing otherwise, defendant railway company was not liable for dam

2. On right of owner of lower tenement as against the rights of the upper land owner to obstruct surface water in a natural drainage channel, see notes in 16 Am. St. Rep. 710; Ann. Cas. 1914A, 1292; 22 L. R. A. (n. s.) 789; L. R. A. 1917A, 517.

The question, What is surface water? is discussed in notes in 3 Ann. Cas. 208; 25 L. R. A. 527.

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