The case, in its nature and substance, belongs to the equity side of the court. Basey v. Gallagher, 20 Wall. 670. The testimony is all in the record. The points contested between the parties were whether, under the decree made July 11, 1871, by the district court of the Third judicial district of Montana, and afterwards affirmed by the supreme court of Montana and this court, the appellee was entitled, in his own right, to 35 inches of the water of Avalanche creek, or whether he held such right in trust for all the associates of the Hellgate & Avalanche Ditch Company, and whether, if the appellee had a several and individual right in the water, the deed made by him to the appellants on March 30, 1878, conveyed to them such individual right. The appellee asserted that he held under the decree individually and in his own right the 35 inches of water, and that he did not convey such right to the appellants by the deed of March 30, 1878. The decree in the case of Gallagher and the present appellants v. Basey and the present appellee and another, rendered June 11, 1871, is, upon its face, a decree in favor of the appellee individually and in his own right, declaring him to be entitled to the 35 inches of water in Avalanche creek. The Hellgate & Avalanche company is not mentioned in the decree, nor is there any intimation that the appellee was to hold the right to that the deed of the appellee to or company of persons. It is also clear that he deed of the appellee to the appellants of March 30, 1878, did not convey to them the right to the 35 inches of water awarded to the appellee by the decree of July 11, 1871. It was a quitclaim deed for his undivided four-fifteenths interest in the property known as the Hellgate & Avalanche D tch Company, and contained this reservation: 'This deed shall not be so construed as to affect individual rights to waters in Avalanche gulch.' The decree of the supreme court of Montana territory in the present case must therefore be affirmed, unless the appellants can make good some of their assignments of error.
The first assignment of error relates to the refusal by the district court to admit in evidence the complaint and answer in the case of Basey v. Gallagher, offered by the appellants, the court having already admitted the decree rendered in that case. The purpose of the evidence offered was to explain the decree, and to show by the complaint and answer that the right to 35 inches of water awarded to the appellee by the decree was not his individual right, but was decreed to him in trust for the Hellgate & Avalanche Ditch Company. The decree having been put in evidence, it was clearly erroneous to exclude the pleadings upon which this decree was based. Even parol evidence is admissible when necessary to show what was tried in a suit, the record of which is offered in a subsequent action between the same parties. Campbell v. Rankin, 99 U.S. 261. But in order to sustain the exception to the exclusion of the pleadings in the case of Gallagher v. Basey, it was necessary that the exception should show what the excluded testimony was, in order that it might appear whether the evidence was material or not. Dunlop v. Munroe, 7 Cranch, 242, 270; Reed v. Gardner, 17 Wall. 409; Morville v. American Tract Society, 123 Mass. 129. This was done by the appellants. A copy of the complaint and answer in the case of Gallagher v. Basey and others is set out in the bill of exceptions. An inspection of the excluded testimony shows that the complaint and answer do not in any degree tend to support the contention of appellants, to-wit, that the 35 inches of water awarded appellee by the decree was awarded to him in trust for the Hellgate & Avalanche Ditch Company. The company is not mentioned in the pleadings, and there is no averment that the appellee held the water-right claimed by him for any one but himself. While, therefore, the appellants were entitled to put the complaint and answer in evidence as a part of the record, it is clear that the exclusion of the pleadings in no degree prejudiced their case. The decree will not be reversed for such an error. Gregg v. Moss, 14 Wall. 564.
The appellants next contend that the decree should be reversed because the court excluded evidence offered by them to show that the consideration on which the appellee became a member of the Hellgate & Avalanche Ditch Company was the conveyance of his water-right in Avalanche creek to the company. The evidence was properly excluded, because this issue had been passed upon in the case of Gallagher and others v. Basey and others, between the same parties, and decided, as appears by the decree of the court, against the contention of appellants. That decree remaining in full force, was not open to contest in a subsequent suit between the same parties. The testimony was therefore properly excluded.
The next and last ground alleged for the reversal of the decree is that the court erred in refusing to permit Hornbuckle, one of the appellants, to testify that when the appellee executed the deed of March 30, 1878, to the appellants, he made no claim or assertion of any individual right to any of the water of Avalanche creek. The evidence excluded was clearly inadmissible. The deed expressly reserved the individual rights in the water. The reservation could not be affected by the evidence offered. When a reservation is made in a deed, it is not necessary, in order to give it effect, that the grantor should, when he executes the deed, assert verbally his right to the property excepted from the conveyance. Evidence that he made no such assertion is clearly incompetent and inadmissible.
We are of the opinion, therefore, that neither of the grounds upon which appellants ask the reversal of the decree is well founded. Other exceptions were taken during the course of the jury trial, but no assignments of error are founded upon them.
Upon an examination of the whole record, we are convinced that the decree of the district court, which was affirmed by the supreme court of the territory of Montana, was according to 'the right of the cause and matter of law.' It is plain the appellants had no case. Decree affirmed.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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