701 F.2d 164
Fergusonv.Leeke
82-6839
UNITED STATES COURT OF APPEALS Fourth Circuit
12/30/82

1
D.S.C.

CPC GRANTED--VACATED AND REMANDED


263 P.2d 976 (1953)
MIDKIFF
v.
KINCHELOE.
No. 9118.
Supreme Court of Montana.
Submitted March 24, 1953.
Decided June 26, 1953.
Dissenting Opinion December 9, 1953.
As Amended on Denial of Rehearing, December 15, 1953.
Farr & Colgrove, Miles City, for appellant. Roland V. Colgrove, Miles City, argued the case orally.
W. B. Leavitt, Miles City, F.F. Haynes, Forsyth, for respondent. W. B. Leavitt argued the case orally.
ANGSTMAN, Justice.
Plaintiff owns land in Rosebud county requiring artificial irrigation. He has used the land since 1916 as a livestock ranch. He contends that he is entitled to the water of Home creek which runs through his ranch but which is a dry creek except that it flows from the spring runoff of melting snows and when the rainfall is sufficient. His contention is that he has used the waters of the creek since 1916 by a system of levees or dikes for the irrigation of 80 acres. Defendant in June 1949 built a dam across the creek above the point where it enters plaintiff's land, the result of which is to impound some of the water in a reservoir depriving plaintiff of the use thereof. This action was to establish plaintiff's right to the use of the water and to enjoin defendant's interference therewith.
The court found in favor of plaintiff and that he was entitled to the water of Home creek for the irrigation of 80 acres of land and ordered that defendant install a headgate *977 at the bottom of his dam to consist of a pipe 30 inches in diameter or other aperture of equivalent size, or to open the dam.
Defendant has appealed from the judgment.
The court's findings, which were made after a view of the premises, may be summarized as follows: That plaintiff has owned the land comprising his ranch since 1916 which among other lands includes 80 acres of meadow or hay land, and that the entire farm is operated as a single farm unit in the ranching and livestock business; that the land is arid in character, requiring artificial irrigation for the production of hay; that Home creek flowing from east to west crosses plaintiff's land; that water flows in the creek only in the spring of the year as a result of fast melting snows and at other times when the rainfall is sufficient; that creek originates about 6 miles east of plaintiff's land and after crossing his land flows into the Musselshell river about four miles west of his land; that defendant operates a ranch about one mile east of plaintiff's land; that neither party or their predecessors in interest filed a water right appropriation as permitted by statute; that in 1916 plaintiff began the construction of a system of dikes or dams on Home creek as it enters his 80 acres of meadow land; that each dike when completed would spread the water onto the land above the dike to the approximate depth of one foot; that the water after reaching the approximate depth of one foot would then escape in runways at each end of the dike or through openings or pipes placed in the center of the dike and thence flow down the creek until it reached the next dike where similar action would take place, irrigating the land between that dike and the one above it; that there were seventeen of these dikes constructed or commenced between 1916 and the time this action was started in August 1949; that some of the dikes along the west end of plaintiff's project were completed after the action was commenced, but most of them were constructed and the water diverted and put to a beneficial use prior to the construction of defendant's dam and reservoir; that some of the original dikes were repaired or enlarged from time to time by plaintiff in the use of his water right; that defendant's dam was constructed in June 1949 about a mile and a half above plaintiff's land; that it was constructed with a spillway so that it would hold in storage four acre-feet of water before the water would flow over the spillway; that defendant's dam provided water for watering livestock only; that the dam obstructs and interferes with water to which plaintiff is entitled.
As conclusions of law the court found that plaintiff has a prior and superior right to the water of Home creek for the irrigation of his 80 acres of meadow land; that defendant is a subsequent appropriator and that he did not sustain the burden of proving that his dam does not interfere with plaintiff's prior right; that defendant should be required to install a headgate sufficient in size to let the water through to which plaintiff is entitled, and permit defendant to "impound or gather the flow of said water in Home creek only when such action will not prevent the plaintiff from receiving or reducing his receipt of the water to which he is entitled." The court fixed the size of the circular pipe at 30 inches in diameter or any other aperture of equivalent size which the evidence shows would be sufficient to deliver 80 acre-feet of water in 24 hours.
The principal contention of defendant is that the court erred in its finding as follows: "That while some of the dikes along the west end of plaintiff's project were completed after the filing of this action, most of them were constructed and the water diverted put to a beneficial use by the plaintiff prior to the construction of defendant's dam and reservoir."
It is conceded defendant constructed his dam in June 1949. Some of plaintiff's dikes were not constructed until the fall of 1949. On cross-examination plaintiff testified that four of his dikes were constructed after August 1949. Eight of the others were either worked on, completed or extended in length after defendant's dam was completed. Witnesses for defendant gave practically this same version of the facts.
*978 Plaintiff in rebuttal testified that only three new dikes were constructed in 1949, but he did not state at what time in 1949 they were constructed. It must be regarded as established that at least three of his dikes were constructed after defendant's dam was built. Several others were enlarged, repaired or completed after defendant's dam was completed.
Plaintiff testified that from his first dike constructed in 1916 he irrigated five or six acres. At some time he used brush dams to raise the water level. He increased the size of his project from year to year. In explaining what he meant by completing a dike in 1949 he meant extensions or repair work and not a new system. He said dikes had existed there before, but they were enlarged or repaired.
As before noted neither party to this action filed the statutory notice of appropriation and hence neither party is entitled to benefit from the doctrine of relation back which is a doctrine that may be relied on only by one who has complied with the statute. R.C.M. 1947, sec. 89-812.
Defendant takes the view that since plaintiff had not completed his entire irrigation project until after defendant had completed his stock water dam he acquired no prior right.
With this we do not agree. Certainly to the extent that plaintiff's project had been completed before defendant's dam was constructed plaintiff had a prior right. The rule is that he who first diverts the water to a beneficial use has the prior right thereto where the right is based upon the custom and practice of the early settlers as here, and where there was no compliance with the statute. Murray v. Tingley, 20 Mont. 260, 50 Pac. 723; Bailey v. Tintinger, 45 Mont. 154, 122 Pac. 575; Clausen v. Armington, 123 Mont. 1, 212 Pac. (2d) 440.
It is unquestioned that plaintiff had completed many of his dikes and diverted water to much of his 80 acres before defendant's dam was constructed. To the extent that plaintiff had made use of the water before defendant's dam was constructed plaintiff had the prior right. The only purpose, however, of extending some of plaintiff's dikes as shown by the evidence was to spread the water over more of his land. Likewise the building of new dikes was to spread the water over more land, or to increase the amount of water used over the land between the new dike and the one immediately above it.
The record shows that some water was used by plaintiff on the extreme west end of his ranch before the dikes were built in that area, but the building of the dikes increased the amount of water that would be spread over the land above it and between the new dike and the one immediately above it. To the extent that plaintiff increased the amount of water that he put to a beneficial use after defendant's dam was constructed, his rights are inferior to those of defendant. On the record before us we cannot determine how much additional acreage plaintiff irrigated as a result of the extension or enlargement of his dikes or the building of new dikes after defendant's dam was constructed, nor can we determine how much additional water was applied to a beneficial use by plaintiff as a result of the enlargement or extension of his project after defendant's dam was completed.
It is our opinion that additional evidence should be received bearing upon those features of the case and appropriate order made in that connection. The court properly held that defendant has a right to capture and retain whatever water he needs whenever plaintiff's rights have first been satisfied. This is nothing more than permitting defendant to capture water that would otherwise be wasted. We think, however, that instead of a pipe being placed at the bottom of defendant's dam, the flow of the water should be controlled by flash boards or other device to the end that defendant may capture and retain in his reservoir whatever water may flow in the stream at a given time in excess of the rights and needs of plaintiff.
The cause is remanded for further proceedings in accordance with the views herein stated.
BOTTOMLY, FREEBOURN and ANDERSON, JJ., concur.
*979 ADAIR, Chief Justice, dissenting.
The defendant Wade Kincheloe owns and operates a cattle ranch comprising 3,000 acres of deeded and leased lands in the northwest part of Rosebud County, Montana.
The plaintiff J.L. Midkiff owns and operates a cattle ranch comprising 5,366 acres of deeded and leased lands in the same locality and drainage area, the plaintiff's lands being immediately to the west of and at a lower elevation than defendant's property.
A dry gully or arroyo called Home Creek that commences on a height or uplift of land located approximately one mile and a quarter from the town of Sumatra descends therefrom in a generally westerly direction through open and rolling prairie country passing through various ranches including those of both Kincheloe and Midkiff, the latter being a lower land owner.
The gully has no springs,  no living streams as tributaries and no permanent source of water supply. Such water as flows in the gully at any time comes directly from either melting snows or heavy rains that have fallen upon the surface of the lands of Kincheloe and others lying within the drainage area of the gully.
The drainage area from which waters could find their way into the below described Kincheloe reservoir all lies to the east and above the easterly boundary of the Midkiff lands and comprises but 12,800 acres including the lands of Kincheloe, but excluding the lands of Midkiff and all lower land owners.
During the months of June and July 1949, Wade Kincheloe, at considerable expense of time, labor and money, constructed a livestock reservoir having a natural and efficient spillway by building, on land entirely owned by him (Kincheloe), a carefully constructed and efficient earth dam across the above described dry gully, such dam being located about a mile and a half above or easterly from Midkiff's east boundary line fence and above the lands and holdings of Midkiff.
Using zero as the deepest part of the reservoir the westerly end of the dam measures 11.5 feet in height. The completed reservoir has a total maximum storage capacity of 181,000 cubic feet of water which, according to the expert testimony adduced at the trial, would be equivalent to about 4 acre-feet of water.
During the time that Kincheloe was constructing his livestock water reservoir as well as subsequent to its completion, Midkiff was busily engaged in constructing a series of additional dikes across the gully for the purpose of spreading and diffusing water on more of his (Midkiff's) lands than such water as flowed in the gully from time to time would otherwise reach.
On August 29, 1949, Midkiff as plaintiff commenced this suit against Kincheloe as defendant. Therein he sought to have the district court of Rosebud County order the defendant Kincheloe to remove his dam,  to issue an injunction permanently enjoining Kincheloe from interfering with the flow of any water in the gully and to adjudge that the plaintiff Midkiff has a first and prior right to the use of all the waters in and carried by such gully.
The right to appropriate water is a statutory right, originating in local customs and sanctioned by early legislation upheld in the courts. With these customs and legislative regulations the plaintiff Midkiff has not complied.
In this jurisdiction dedication of waters to the public for the purpose of laying the legal foundation for their appropriation and use under state regulation is made by constitutional provision.
The Constitution of Montana, Art. III, sec. 15, provides: "The use of all water now appropriated, or that may hereafter be appropriated for sale, rental, distribution, or other beneficial use, and the right of way over the lands of others, for all ditches, drains, flumes, canals, and aqueducts, necessarily used in connection therewith, as well as the sites for reservoirs necessary for collecting and storing the same, shall be held to be a public use. * * *" Emphasis supplied.
R.C.M. 1947, sec. 89-801, provides: "What waters may be appropriated. The right to the use of the unappropriated water of any *980 river, stream, ravine, coulee, spring, lake, or other natural source of supply may be acquired by appropriation, and an appropriator may impound flood, seepage, and waste waters in a reservoir and thereby appropriate the same." Emphasis supplied.
This statute authorizes the appropriation of flood, seepage, and waste waters. The appropriation so authorized may be accomplished by impounding such waters "in a reservoir". Sec. 89-801, supra.
The plaintiff Midkiff has no reservoir capable of capturing, storing and impounding the waters of the gully. All he has is a series of low dikes built across the gully which temporarily deflect, retard, spread and diffuse already diffused waters all of which, either as snow or rain, have first fallen upon the lands of Kincheloe and other upper land owners and none of which originally fell upon the lands of Midkiff.
To the extent that waters conform to the classification of flood, seepage or waste waters they may be impounded and thereby appropriated under R.C.M. 1947, sec. 89-801, supra. However, the defendant Kincheloe has the same right to impound, store and put to beneficial use these flood and waste waters while they are upon his lands as has the plaintiff Midkiff when they reach his holdings.
In Newton v. Weiler, 87 Mont. 164, 179, 286 Pac. 133, 139, the plaintiff, a lower land owner having made a valid appropriation of waste water, sought to compel the defendant, an upper land owner, to allow waste waters to flow to the lower lands. This court there said: "Defendant, as the proprietor of his land, has the right to use his land as he pleases, and has the right to change the flow of the waste waters thereon in the reasonable enjoyment of his own property, subject to the limitation embraced in the maxim `"Sic utere tuo ut alienum non laedas," or as is said in some of the cases, the use must be without malice or negligence,' Ryan v. Quinlan, 45 Mont. 521, 124 Pac. 512, 516."
In the Newton case, supra, diversion ditches were used. Here the plaintiff admits that he had no diversion ditch or ditches but only low dikes built across the gully which has been widened, filled in and spread out by a bulldozer.
In Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 268, 17 Pac. (2d) 1074, 1080, 89 A.L.R. 200, this court said that "the owner of the right to use the water  his private property while in his possession  may collect it, recapture it, before it leaves his possession, but, after it gets beyond his control it thus becomes waste and is subject to appropriation by another."
It is the general rule that diffused surface waters resulting directly from rain and melting snow may be collected, impounded and put to a reasonable beneficial use by the owner of the land on which they occur, so long as such waters remain on such owner's land. In the event the landowner makes a reasonable use of waters resulting from rain and melting snow, and particularly of such as result from precipitation on his own land, such waters may be treated as "flood, seepage, and waste water" of which he may make an independent appropriation under R.C.M. 1947, sec. 89-801, supra, by impounding them in a reservoir. Compare Doney v. Beatty, 124 Mont. 41, 220 Pac. (2d) 77.
An appropriator may not insist upon the upstream release of water which would do him no good; he cannot insist upon the maintenance of a barren right; he may not complain if another user upstream takes waters during times when they would otherwise be lost. Compare Beaverhead Canal Co. v. Dillon Electric Light & Power Co., 34 Mont. 135, 85 Pac. 880.
In arid regions such as are here involved it is essential to provide artificial appliances for the impounding of water for range livestock. Sometimes great distances intervene between natural water places. Frequently natural facilities are inadequate or entirely lacking during dry periods. Stock reservoirs, sometimes called "water holes," may be built either in water courses or away from them. These reservoirs may be filled and replenished from time to time by the capture of diffused surface waters, natural stream accumulations, diversion from streams and otherwise as the watering of stock is one of the specific and separate *981 beneficial purposes for which water may be appropriated.
The relation of a stock reservoir to a water right depends upon the character of the water rights involved. If the water is impounded in or diverted from a water course, the law of water courses applies. If the stock reservoir collects and impounds diffused surface waters then the law governing such class of waters applies.
There is much testimony as to the character of the dry gully which masquerades under the nom de plume of Home Creek.
J.L. Midkiff, the plaintiff, testified:
"Q. What kind of a creek is this, living stream, or dry creek? A. No, it's a dry creek. * * *
"Q. Mr. Midkiff, what kind of a creek is Home Creek? A. Well it's just a dry creek.
"Q. Ordinarily dry creek? A. Well all of the time a dry creek.
"Q. And what sources does it get its water that it carries? A. Well from snow water, rain, flash flood, cloud burst.
"Q. There is no living water in the creek? A. No."
Plaintiff's witness, H.G. Young, attorney at law, civil engineer and county surveyor of Rosebud County, who prepared a map of the drainage area for the trial testified:
"Q. I notice several smaller lines, lighter lines, coming into the creek, what are those? A. Those represent the principal branches of Home Creek.
"Q. In other words, tributaries? A. Yes, tributaries.
"Q. Consisting principally of what  gullies? A. Dry gullies.
"Q. And by the way what's the nature of Home Creek? A. It's a dry creek."
Matt Hjelvik, a witness for plaintiff, who for some 40 years had lived in the vicinity of the Kincheloe and Midkiff ranches, testified:
"Q. Are you familiar with Home Creek? A. Yes, I am.
"Q. What kind of a creek is it? A. It's a dry creek.
"Q. Flows at what time? A. Any time you get a shower of rain or when the snow goes off.
"Q. And what would the amount of its flow depend upon? A. Well it depends on the rainfall and how much snow there is and how fast the snow will go.
"Q. Depends upon how fast the rain came or the snow melted? A. Yes.
"Q. And also thunder showers or water spouts? A. Yes, sir."
The result of using a dam to reservoir water is to accumulate a quantity of water susceptible of practical use, or to retain water for use when needed. So long as diffused surface waters are on the land owner's lands he has the right to subject them to ownership and use. Compare: R.C.M. 1947, sec. 89-801, supra; Gibbs v. Williams, 1881, 25 Kan. 214, 37 Am. Rep. 241; Turner v. Big Lake Oil Co., 1936, 128 Tex. 155, 96 S.W. (2d) 221; Saguinetti v. Pock, 1902, 136 Cal. 466, 69 Pac. 98, 89 Am. St. Rep. 169; State v. Hiber, 1935, 48 Wyo. 172, 44 Pac. (2d) 1005.
In 1917 plaintiff attempted to irrigate about six acres of land by using brush dams to spread the water. This method was not a success and thereafter plaintiff resorted to the dike system. He testified:
"Q. And what kind of an irrigation system do you have on the land that you use in spreading the water? A. Well I have a dike system, I wouldn't know as there would be any name for it particular other than a dike-flood irrigation system.
"Q. It's what is known as a flood system? A. That is right.
"Q. You have no ditches leading out of Home Creek? A. No.
"Q. You simply divert the water from Home Creek by means of dikes? A. Yes, sir.
"Q. Can you explain and I want you to explain how your system operates, commencing with the east end of your land. A. Yes. Commencing at the east end of my land directly inside of the fence there is a levee and that spreads the water all over the land above the levee. * * *
*982 "Q. And for what purpose are those dikes or levees constructed? A. To spread the water; hold the water back.
"Q. When you say `spread the water,' just how do they operate? A. Well it comes down against that first one, when that gets full it goes around and comes down to the next one.
"Q. `When it gets full,' what do you mean? A. When it gets up to the spillway, when the land is covered.
"Q. When the land is covered to a certain depth then the water escapes from that dike or levee? A. Yes.
"Q. Are these dikes and levees so constructed as to hold back a certain depth of water on the land that each one serves? A. They are built to hold back a foot of water. * * *
"Q. Is your entire irrigation system of dikes and levees so constructed that it holds back a foot of water on each meadow before it escapes to the next succeeding levee? A. They are built that way.
"Q. Why do you hold a foot of water? A. Well that much water is needed. * * *
"Q. And what has become of the old creek channel through your meadow? A. Well it is automatically filled up and then I dozed it in to fill it up."
At the trial the judge inquired of the plaintiff's witness H.G. Young, the county surveyor, concerning plaintiff's system of dikes and was told that the dikes hold back and spread the water over the land. The record further shows the following question by the court and the witness Young's answer, viz.: "The Court: Have we got another project like it in the county? A. There are several of them where they spread it like that, I don't know of any exactly like that but I will say this, he used a rather ingenious method of spreading the water, perhaps it's not economical."
The record is clear that plaintiff has never had a diversion ditch; that he merely fills in with a bulldozer, widens and spreads out the gully and uses the diffused waters therein when and where he finds them and without taking or diverting them from the gully where found. By means of his dikes plaintiff merely retards, deflects, diffuses and spreads the waters out a little more without either capturing or controlling them. Such system is most wasteful. It takes all the water that is ever found in the gully regardless of the water needs and requirements of other landowners. The system does not meet the requirement of our statutes and decisions providing the manner in which waters may be appropriated.
Plaintiff lays claim to all the waters that shall at any time flow in the ordinarily dry gully to the exclusion of all others.
Plaintiff testified:
"Q. How much water of Home Creek do you claim or require? A. I want enough water to flood this here area.
"Q. To what depth? A. One foot.
"Q. How many times? A. As many times as the creek runs. * * *
"Q. Have you at different instances and times taken time to determine the length of time it would require to flood the land under certain flows of the creek? A. I have.
"Q. And in those instances that you have observed, how long did it take? A. About 12 hours.
"Q. And what kind of a flow would it be in the creek to do that? A. That would take a good run.
"Q. A good run. Now you testified I believe that you had 80 acres? A. About.
"Q. And that you required an acre foot of water for the irrigation of those lands? A. Yes, sir. * * *
"Q. What was it you testified to? A. I testified that I want a foot of water every time the creek flows as far as the water goes.
"Q. Well that's what I mean, sir. Every time the creek flows you want up to one foot of water per acre if there is one foot of water, is that right? A. That is right.
"Q. And you want that every time the creek flows? A. Yes, sir.
"Q. You even want it when you are haying? A. Yes, sir.
"Q. And you want it immediately before you hay? A. Yes.
*983 "Q. It is impossible, is it not, to cut hay with one foot of water on the land? A. Can't cut hay then.
"Q. But you still want that, nevertheless? A. I have no other way, I have got to take it.
"Q. That is right, you have absolutely no control over the water at all that comes down Home Creek, you have got to take it at least to one foot, your dikes are so constructed, isn't that right? A. That is right.
"Q. And there is no way you can divert and send it on around. A. No, sir.
"Q. And that is true regardless of whether or not you need it or don't need it? A. That is right. * * *
"Q. But if you have an excess it will flow out in flash floods into the Musselshell River, continue down Home Creek into the Musselshell River? A. That is right."
The district judge filed a written opinion in the cause, the opening paragraph whereof correctly recites: "This action involves the use of the waters of Home Creek in the northwest part of Rosebud County, Montana, which is an unadjudicated dry creek, having no permanent source of water supply, and flows in the spring from melting snows and after rainfall sufficient to make it run. It is therefore difficult to measure its flow or to allocate its waters to those desiring to use them."
In its judgment the district court adjudged: That plaintiff have a first, prior and superior right to the waters of the main stem of Home Creek for irrigating his hay land embracing eighty acres "without obstruction or interference of any kind by the defendant; * * * that within 90 days from * * * the entry of * * * judgment, the defendant * * * install a headgate at the bottom of his dam either in the form of a circular pipe 30" in diameter or any other aperture of equivalent size so that the water to which plaintiff is entitled may be permitted to flow without storage, impounding or diversion thereof and as will permit plaintiff to receive the water to which he is entitled and in case of defendants' failure to install such headgate * * * cut or open his said dam to eliminate the interference thereof with the flow of the waters of Home Creek to which plaintiff is entitled, such removal to be done by the defendant so as not to permit any of the dirt thereof to wash or be carried to, on or over plaintiff's lands and that defendant be and he is * * * permanently enjoined from in any manner obstructing or interfering with the flow of the said water in said creek to, on or over plaintiff's lands or to in any manner interfere with the use thereof by the plaintiff."
Thus in a dry gully wherein it is not only "difficult" as was stated by the trial judge, but utterly impossible to measure the flow or allocate the waters either in miner's inches or in acre-feet of water, would the trial court's decree destroy the usefulness and efficiency of defendant's livestock reservoir so that any and all waters at any time found flowing in the gully up to 80 acre-feet would be allowed to flow without hindrance, and irrespective of whether or not it went to waste, through defendant's reservoir which, when filled to capacity, will hold but 4 acre-feet of water.
The majority opinion, recognizing the injustice of the trial court's order, says "that instead of a pipe being placed at the bottom of defendant's dam a headgate should be installed and the flow of water controlled by flash boards" or other device to the end that defendant may capture and retain in his reservoir whatever water may flow in the stream at a given time in excess of the needs of plaintiff, but here again is presented the problem of determining when the defendant Kincheloe may be allowed to capture and store water and when he must let it flow without hindrance. If a flash flood produced exactly 84 acre-feet of water possibly then the defendant Kincheloe would be allowed to capture and store in his reservoir 4 acre-feet, being the maximum capacity thereof, and then allow the remaining 80 acre-feet to continue down to plaintiff's project, but what is the answer when the melting snows or the rains produce but 1, 2 or 3 acre-feet or any number of acre-feet less than the 80 acre-feet claimed by plaintiff each and every time there is a spring runoff, a flash flood or water of any sort flowing in the gully. Again because the *984 plaintiff Midkiff lays claim to 80 acre-feet of water to carry on his project on 65 acres of hay meadow does not show that he is entitled to that or any other amount or that such amount is required to meet his actual needs.
The 80 acre-feet claimed by the plaintiff Midkiff is a lot of water. Four acre-feet, the capacity of defendant's reservoir, is but one-twentieth as much. It would take all the water in 20 such reservoirs as defendant's filled to capacity to supply the amount of water which plaintiff claims he needs for irrigating but 65 to 80 acres of hay meadow in the wasteful method and practice which he employs.
In my opinion only the defendant Wade Kincheloe has complied with the statute and only he has made a valid appropriation. His right to use his reservoir to impound the waters which he requires for a recognized beneficial use should be respected and adjudged. R.C.M. 1947, sec. 89-801.
The plaintiff Midkiff has the same right to build on his own lands an efficient dam and reservoir capable of capturing, storing and controlling the diffused surface waters found running to waste upon his lands and to thereafter put the waters so impounded to beneficial use as has the defendant but this the plaintiff has not seen fit to do. He has no dam. He has no reservoir. He cannot capture the flood, seepage or waste waters. He cannot impound them. He admits he cannot control them. His system of dikes accomplishes none of these results nor does it prevent the water in the gully from running to waste.
The defendant Kincheloe has constructed a good dam. He has built an efficient reservoir. He can capture and impound as much as 4 acre-feet of water and when once impounded he may control it and place it to beneficial use in the watering of his livestock.
The defendant Kincheloe has the same right to impound and store in his reservoir on his own lands the diffused surface waters running to waste thereon that he has to gather or collect in a rain barrel or a cistern the waters from snows or rains as they run from the roofs of his dwelling or barn.
In my opinion the majority decision denies the defendant Kincheloe a right recognized in the state Constitution to build on his own land a dam and reservoir for the collecting and storing of flood, seepage and waste waters to the end that such waters be put to a beneficial use. Thus is the defendant denied and deprived of property rights to which he became and is entitled by reason of having complied with the law governing same. I therefore dissent.


141 B.R. 84 (1992)
In re Pamela W. MASTERSON, Debtor.
Bankruptcy No. 91-13907S.
United States Bankruptcy Court, E.D. Pennsylvania.
June 17, 1992.
*85 Neil Leibman, Bala Cynwyd, Pa., for debtor.
Pamela A. Morone, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for Ethel Gardner.
Charles C. Coyne, Philadelphia, Pa., Interim Trustee.
Edward Sparkman, Philadelphia, Pa., Standing Chapter 13 Trustee.
Frederic Baker, Asst. U.S. Trustee, Philadelphia, Pa.

OPINION
DAVID A. SCHOLL, Bankruptcy Judge.
A. INTRODUCTION
At issue is whether 11 U.S.C. § 706(a) of the Bankruptcy Code precludes the Debtor from converting a Chapter 7 case to Chapter 13 after that case had been previously converted from Chapter 11 to Chapter 7. This court follows the line of cases which hold that, although a debtor does not have an absolute right to a second conversion of a case from one Chapter to another, the court may exercise a discretional right to allow a second conversion. Based on the facts of this case, we exercise our discretion to allow this Debtor to convert this case to Chapter 13, subject to controls on future administration of this case.
B. PROCEDURAL HISTORY
PAMELA W. MASTERSON ("the Debtor") filed a voluntary Chapter 11 bankruptcy petition, accompanied by Schedules, on July 18, 1991. The Schedules indicated that the Debtor had approximately $114,000 in secured debts and $25,000 in unsecured debts. The secured debts were comprised of two mortgages on a single property the addresses of which are 1125-55 Stanwood Street and 1118-32R Solly Avenue in the Fox Chase section of Philadelphia, identified as a horse farm valued at $350,000 ("the Farm").
After a status hearing of November 20, 1991, as is held in all of our Chapter 11 cases, this court entered an Order of November 20, 1991, requiring the Debtor to file a plan and a proposed disclosure statement and notify all interested parties of the filing of the disclosure statement on or before March 2, 1992. That Order also tentatively scheduled a hearing on the disclosure statement on April 1, 1992, and stated that, if the Debtor failed to comply with the order, this case could be converted to Chapter 7 or dismissed by the court without a further hearing.
On December 16, 1991, the United States Trustee moved to convert the case from Chapter 11 to 7 on the ground that the Debtor had failed to file monthly operating reports, as required by Local Bankruptcy Rule 2015.1. A hearing on this motion was scheduled on January 29, 1992. On January 15, 1992, Ethel Gardner, the first mortgagee of the Farm, filed a statement in support of Trustee's motion, emphasizing that there was no evidence that the Debtor had maintained hazard insurance to protect Gardner's interest in the Farm.
The Debtor's counsel subsequently produced the overdue operating reports. At the hearing of January 29, 1992, where he appeared in response to the Trustee's motion, the Debtor was permitted an opportunity to produce proof of proper insurance for horse boarding and riding instruction at a continued hearing on March 4, 1992. However, when neither the Debtor nor her counsel appeared at the continued hearing, and upon our observing that a plan but no disclosure statement had been filed as of that date, we entered an Order, on March 4, 1992, converting this case to a Chapter 7 case.
On February 18, 1992, Gardner had filed a motion to lift the automatic stay to permit her to foreclose on her mortgage on the Farm. A hearing on this motion was scheduled on March 11, 1992, and initially continued by agreement until April 8, 1992.
On April 8, 1992, the Debtor filed a Motion to reconsider the order converting the case from Chapter 11 to Chapter 7. That hearing was scheduled on April 29, 1992, and Gardner agreed to continue the hearing on her Motion for relief until that date as well. At the April 29, 1992, hearing, counsel for Debtor requested a further continuance, *86 asserting, for the first time, the Debtor's intention to file a motion to convert the case to Chapter 12 or Chapter 13 rather than to reconvert it to Chapter 11. By agreement of counsel, we entered an order, dated May 1, 1992, stating that any motion to convert the case to another chapter must be filed and served on or before May 15, 1992; that the hearing on any such motion would be continued for the last time on June 4, 1992; and that the hearing on Gardner's Motion would be continued to June 11, 1992.
In response, the Debtor, on May 15, 1992, filed the Motion to convert this case from Chapter 7 to Chapter 13 which is before us. A hearing was held on the instant Motion on June 4, 1992. Testimony was adduced from the Debtor only. Subsequent to this hearing, Gardner agreed to continue the hearing on her Motion for relief from the stay until July 2, 1992.
C. FACTUAL HISTORY
The Debtor did not deny several relevant allegations in Gardner's Motion. These are that (1) the Debtor and her ex-husband purchased the Farm from Gardner, who now is 74 years of age and resides in Florida, on December 18, 1986; (2) on May 20, 1991, the Debtor bought out her exhusband's interest in the Farm as part of a financial settlement in their divorce; and (3) since the Debtor took over the Farm, she has made but one mortgage payment to Gardner.
The remaining facts set forth are extracted from the Debtor's testimony. The Debtor has two mortgages on the Farm. She boards horses, and gives riding lessons to mostly children, at the Farm. When the Debtor first filed for bankruptcy under Chapter 11, she had not only just finalized her divorce and bought out her ex-husband's interest, but also she had recently lost her job with the United States Post Office ("the USPO") due to an injury. She stated that, although she would have preferred to continue to work, she was placed on disability status by the USPO.
The Debtor testified that, at the time of her divorce, the horse-boarding and riding-lesson business had dwindled. However, since filing her bankruptcy case and her becoming financially independent, the Debtor claimed that business had picked up substantially. She stated, in animated fashion, that she has now established her reputation as a skilled riding instructor with the parents of several Philadelphia police officers and has greatly increased her clientele among their children. She also emphasized the ideal facilities of the Farm, since it is located on the edge of Pennypack Park, which has horse trails, and it has an indoor arena in which she can conduct riding lessons in any type of weather.
The Debtor testified that her current exclusive sources of income are from horse boarders and riding students and their parents. She boards horses at approximately $220 per horse per month and charges $20 per hour for riding lessons. The Farm is capable of boarding a maximum of twenty-five (25) horses, but only five (5) are presently in residence. She claimed that the total of her monthly personal and business expenses, including her planned payments towards arrearages and the current mortgage payments, amounts to approximately $2600. She stated that she presently brings in approximately $2000 monthly from lessons ($1000) and boarders ($1000). She stated that she considers that her primary source of income is from the riding students because she uses the income from the boarders to offset her expenses for each month. Although the number of lessons she gives may fluctuate with the weather and seasons, she expressed confidence that, once a student starts, the facilities will allow the student to continue regardless of the weather.
The Debtor projects bringing in enough income to cover her expenses within "a couple of months." She also stated that she has, in hand, approximately $10,500 derived from a retirement fund from her employment at the USPO which can be drawn from immediately to be applied to her mortgage arrearages. She also testified that she expects to receive back pay from, or to get back her job at, the USPO. *87 However, if neither comes through, she claimed to be capable of working at other "desk-type jobs" and stated that she is currently in the process of submitting applications for such positions. Ultimately, she hopes to work and run the Farm at the same time. She has no children or other dependents. She stated that what she needs most is time to build her business.
On cross-examination the Debtor admitted that her present expenses exceed her income, but she stressed that her expenses are lower now than when she initially filed this case because most of the insurance that she was then paying is currently paid through the fall. However, she also admitted that her insurance expenses would arise again when the covered periods expired. Despite the imbalance of her expenses and income, she testified, with convincing enthusiasm, that she has a competitive "product" in a business that is both lucrative and untapped in Philadelphia.
D. DISCUSSION
The initial issue at hand is whether the Debtor is prevented from converting a Chapter 7 case, previously converted from a Chapter 11 case, to a Chapter 13 case under the terms of 11 U.S.C. § 706(a), which reads as follows:
The debtor may convert a case under this chapter to a case under Chapter 11, 12 or 13 of this title at any time, if the case has not been converted under section 1112, 1307, or 1208 of this title. Any waiver of the right to convert a case under this subsection is unenforceable.
The courts appear to be evenly divided on the issue of whether a "second conversion" of a case previously converted to Chapter 7 is ever permissible. Some courts have refused any second conversion. See In re Carter, 84 B.R. 744, 748 (D.Kan. 1988); In re Vitti, 132 B.R. 229, 231 (Bankr.D.Conn.1991); In re Bryan, 109 B.R. 534 (Bankr.D.D.C.1990); In re Hanna, 100 B.R. 591, 594 (Bankr.M.D.Fla. 1989); In re Richardson, 43 B.R. 636, 638 (Bankr.M.D.Fla.1984); and In re Ghosh, 38 B.R. 600, 603 (Bankr.E.D.N.Y.1984). Other courts have held that a second conversion is possible, but have refused conversions in the exercise of their discretion on the facts before them. See In re Somers Corp., 123 B.R. 35, 37 (Bankr.N.D.Ohio 1990); In re Johnson, 116 B.R. 224, 227 (Bankr.D.Idaho 1990); In re Trevino, 78 B.R. 29, 32 (Bankr.M.D.Pa.1987); and In re Walker, 77 B.R. 803, 805 (Bankr.D.Nev.1987). Finally, other courts, agreeing that a second conversion is possible, have exercised their discretion to allow conversion because the facts warranted it. See In re Hollar, 70 B.R. 337, 338 (Bankr.E.D.Tenn.1987); and In re Sensibaugh, 9 B.R. 45, 47 (Bankr. E.D.Va.1981).
The first line of cases reasons, through statutory interpretation, that, if a case has already been converted once, the debtor has no right to convert again. Vitti, supra, 132 B.R. at 230. See also Carter, supra, 84 B.R. at 747; Bryan, supra, 109 B.R. at 534; Hanna, supra, 100 B.R. at 593; Richardson, supra, 43 B.R. at 638; and Ghosh, supra, 38 B.R. at 603. These courts hold that the brief legislative history of § 706(a) supports such an interpretation. The Carter court stated that, in granting the debtors but one chance to convert, Congress "struck a balance between the competing policy of the debtor's opportunity to repay and the potential disadvantage of delay caused by repeated attempts to convert." 84 B.R. at 747.
However, we note that, although some case law supports this position, neither Gardner nor the United States Trustee, who appeared at the hearing on June 4, 1992, and opposed the conversion, argued that the debtors should be precluded entirely from a second conversion of a Chapter 7 case. Rather, these parties opposed the instant second conversion because they did not believe the Debtor would be capable of confirming a Chapter 13 plan.
This court, like apparently all of the interested parties, is most persuaded by the line of cases which interprets § 706(a) as allowing a second conversion, but only after a notice and hearing at which the Debtor's circumstances must be carefully scrutinized, instead of, as in the case of an initial conversion, being allowed to convert a *88 Chapter 7 case to another Chapter as of right. See Trevino, supra, 78 B.R. at 32; Sensibaugh, supra, 9 B.R. at 47; and Hollar, supra, 70 B.R. at 338. The reasoning of these cases is that § 706(a) precludes only a conversion as of right. The legislative history relied upon as supportive of this position is that which interprets the Code as a means of encouragement of debtors to repay their debts. These courts believe that the important issue to be determined, in the exercise of discretion as to whether to allow a second conversion, is whether the policy of encouraging a debtor to repay debts will be served by that particular conversion.
The Debtor presently has an income of approximately $2000 monthly from boarding horses and giving riding lessons. She was convincing in her testimony that her business could well be lucrative and is still untapped in Philadelphia and will generate enough income to cover all her expenses within a few months. Her business has been picking up since she first filed for bankruptcy and she expects the increase in activity to continue. It also cannot be forgotten that the Debtor has approximately $10,500 from a retirement fund into which she can tap immediately to cure much of her post-petition mortgage arrears. We accept her testimony that, with "a little more time," her business may well grow to a level sufficient to fund a Chapter 13 plan.
At bottom, the issue raised by Gardner and the United States Trustee is one of potential plan feasibility. Feasibility is one of the requirements, pursuant to 11 U.S.C. § 1325(a)(6), which must be satisfied to allow a Chapter 13 plan to be confirmed. However, in addressing the feasibility requirement in the context of a Chapter 13 case in In re Capodanno, 94 B.R. 62, 65 (Bankr.E.D.Pa.1988), this court stated as follows:
[most] recent cases recognize that § 1325(a)(6) only requires that the Debtors' budget appears realistic and that the "expectations of income are sufficiently realistic that they should be given an opportunity to carry out the plan they propose." In re Compton, 88 B.R. 166, 167 (Bankr.S.D.Ohio 1988). See also In re Frey, 34 B.R. 607, 608-09 (Bankr. M.D.Pa.1983); In re Anderson, 18 B.R. 763, 765 (Bankr.S.D.Ohio 1982); and In re Perskin, 9 B.R. 626, 632-33 (Bankr. N.D.Tex.1981).
Our own decisions have acknowledged the economic resiliency of low-income persons, who are often accustomed, by necessity, to get by on financial arrangements which persons blessed with higher incomes find inconceivable. See In re Crompton, 73 B.R. 800, 809 (Bankr. E.D.Pa.1987) (in considering financial prospects of unmarried female debtor with two young children, this court refuses to set down a rule that a "cushion" is always a prerequisite). We fail to see where we are giving any favors to persons in dire financial straits by declining to give them a chance to preserve their homes, thereby pushing them closer to or into the growing ranks of the homeless. Therefore, we are inclined to give debtors a chance, even when their post-payment performances have been "abysmal," as long as their plan "does not seem to us to be out of reach." In re Mitchell, 75 B.R. 593, 599, 600 (Bankr. E.D.Pa.1987). If they fail to maintain their payments under the Plan, the Standing Chapter 13 Trustee, as well as any interested party, may move for dismissal or conversion of the case to Chapter 7. 11 U.S.C. § 1307(c)(6).
. . . . .
Collier, though emphasizing the importance of the feasibility requirement, agrees with our approach. That text counsels that "[e]ven when the court has serious doubts about feasibility, the debtor should usually be given a chance to attempt their [sic] proposed plan [and] . . . the court should be reluctant to impose its idea of what sacrifices the debtor is able to make." 5 COLLIER [ON BANKRUPTCY], . . . ¶ 1325.07, at 1325-45 [(15th ed. 1988)]. We therefore approach . . . analysis of the Debtors' economic status, in reference to § 1325(a)(6), with the spirit of giving the Debtors the benefit of any doubt.
*89 Cf. In re Orfa Corp. of Philadelphia, 129 B.R. 404, 410 (Bankr.E.D.Pa.1991) (feasibility requirement of 11 U.S.C. § 1129(a)(11) is not a difficult threshold to clear).
It may be that the Debtor's "lost year" in Chapter 11 and Chapter 7 could restrict her ability to reorganize somewhat, since it might be argued that she now will have only about 48 months of plan period left to liquidate her mortgage arrearages. See In re Cobb, 122 B.R. 22, 26-27 (Bankr.E.D.Pa. 1990). However, it is apparent that this case should be considered as a "new" case, with the 60-month maximum plan period measured from the date of conversion. See 11 U.S.C. § 348(b). And it is not inconceivable that the Debtor could propose a feasible plan even with a 48-month maximum-plan-period handicap.
The Debtor is in the early stages of establishing her business. She wishes to convert her case to Chapter 13 to obtain the opportunity to gain steady footing and a chance to pay her debts. Her situation is therefore different from those of the debtors in Johnson and Trevino, where the courts denied reconversions to Chapter 13 and Chapter 11, respectively, because neither debtor showed that creditors were likely to benefit from the reconversions. In Johnson, supra, 116 B.R. at 227, the court denied a reconversion to Chapter 13 because debtor did not show that the reconversion would be likely to be successful. In Trevino, supra, 78 B.R. at 32, the court denied reconversion because it found that the debtor already had had a sufficient opportunity to repay debts, had not done so, and was not likely to do so upon return to Chapter 11. The instant Debtor, by way of contrast, has established "cause" for reconversion by demonstrating that the only way she can maintain her business and pay her creditors is to keep the Farm and generate enough income from it to pay off her debts. Without the Farm, the Debtor's prospects for her achievement of that goal would be greatly diminished. Her "failures" in Chapter 11 appear to have resulted from the ill-advised choice of that Chapter in the first place.
Also, this case is readily distinguishable from Walker, supra, 77 B.R. at 805, where the court found that the debtor could not meet the debt-limitations requirements of 11 U.S.C. § 109(e), and that therefore conversion of that debtor's case to Chapter 13 would be futile. The Debtor's debts do not exceed the maximums ($350,000 secured debt and $100,000 unsecured debt) set forth in 11 U.S.C. § 109(e). She has only about $114,000 in secured debts and $25,000 in unsecured debts.
We must also add that we have little doubt that the Debtor satisfied the further requirement of 11 U.S.C. § 109(e) that she must have "regular income." The Code, at 11 U.S.C. § 101(29), defines an individual with "regular income" as
[an] individual whose income is sufficiently stable and regular to enable such individual to make payments under a plan under chapter 13 of this title, other than a stockbroker or a commodity broker.
The Debtor testified that she presently has an earned income of $2000 a month and projects that it will increase to meet her expenses within a few months. Compare In re Rowe, 110 B.R. 712, 717-18 (Bankr. E.D.Pa.1990) (receipt of regular gratuitous payments to debtor from her son suffices); and In re Zawisza, 73 B.R. 929, 934-35 (Bankr.E.D.Pa.1987) (public benefits are "regular income"). For the reasons given, the Debtor has fulfilled the Chapter 13 requirements and is eligible to file under that Chapter.
We thus perceive no impediment to the conversion of the Debtor's case to Chapter 13 at this time. Consequently, as in Hollar, supra, we will allow the Debtor to convert her instant case from Chapter 7 to Chapter 13 even though this case was previously converted from Chapter 11 to Chapter 7. However, because of the Debtor's "lost year" renders time of the essence to her success, our Order granting the instant Motion will also include deadlines by which the Debtor must achieve the important benchmarks in her (now) Chapter 13 case.
*90 E. CONCLUSION
An appropriate Order consistent with this Opinion will be entered.


701 F.2d 164
Fergusonv.Amelia Dress Co.
82-1619
UNITED STATES COURT OF APPEALS Fourth Circuit
1/11/83

1
W.D.Va.

VACATED AND REMANDED


321 F.2d 641
Edward R. HEISLER, Appellant,v.UNITED STATES of America, Appellee.
No. 18366.
United States Court of Appeals Ninth Circuit.
July 16, 1963.

Robert Baronsky, Marc A. Franklin, Stanford School of Law, Stanford, Cal., for appellant.
Cecil F. Poole, U.S. Atty., James Hewitt, Asst. U.S. Atty., San Francisco, Cal., for appellee.
Before CHAMBERS, JERTBERG and MERRILL, Circuit Judges.
MERRILL, Circuit Judge.

1
Under Title 28 U.S.C. 2255, appellant seeks to have vacated judgment of conviction and imposition of sentence based upon a plea of guilty of the crime of conspiring to make and possess counterfeiting paraphernalia.  Motion was made to the District Court for the Northern District of California, Southern Division, and was denied by that court.  This appeal followed.

2
Appellant's contention, as here presented, is that he did not make an intelligent and understanding plea of guilty, since he had a complete defense about which he was ignorant at the time he pleaded: the defense that the counterfeiting paraphernalia involved was obtained by unlawful search and seizure.

3
The district court did not reach the merits of this contention.  It was dealt with as follows:

4
'Petitioner's remaining contention, that his plea of guilty was induced by coercion, duress and mismanagement of counsel, would raise an issue properly determinable in a section 2255 proceeding upon an adequate presentation * * *.

5
'Petitioner's allegations as they are now stated, however, are bare and conclusionary to the extreme.  Petitioner has failed to state sufficient facts which may aid this court to determine its duty with respect to the contention * * *.

6
'The court, therefore, denies petitioner's motion.  But, with respect to this last contention, it does so without prejudice to renewal in supplemented form at some future date, if petitioner feels himself so advised.'

7
This 2255 motion was presented to the district court by appellant in propria persona.  Appellant, now represented by legal counsel, contends that the petition was adequate, and that to hold otherwise is to deal in too demanding a fashion with a layman's product.

8
We agree with the district court.

9
Appellant's counsel may well be correct in his interpretation as to what appellant, by the conclusionary language of his petition, meant to imply had occurred between himself and his then counsel with reference to his guilty plea.  If this be appellant's meaning, however, in our judgment it is not demanding too much of him to ask that he take the responsibility of coming right out and saying so in a recital of facts which could then be judged as to their legal consequences and, if a hearing be deemed proper, could then be put to the test as to their truth.

10
In this respect the district court has not yet closed the door on the appellant.

11
Affirmed.


115 U.S. 620 (1885)
CAMPBELL & Another
v.
HOLT.
Supreme Court of United States.
Submitted April 17, 1885.
Decided December 7, 1885.
IN ERROR TO THE SUPREME COURT OF THE STATE OF TEXAS.
Mr. W.W. Boyce for plaintiffs in error.
Mr. F. Charles Hume and Mr. Seth Shepard for defendant in error.
MR. JUSTICE MILLER delivered the opinion of the court.
This is a writ of error to the Supreme Court of the State of Texas.
The action was brought in the District Court of Washington County, Texas, May 16, 1874, by Holt, the defendant in error, against the present plaintiffs in error. Holt sued as devisee and legatee of his wife, Malvina, who was the daughter of John Stamps, deceased, of whose estate Moina and J.B. Campbell are administrators.
The action was founded in the allegation that Malvina Stamps, afterwards Holt, inherited from her mother, Henrietta Stamps, the wife of John Stamps, an interest in lands and negroes which her mother owned at the time of her death; that the land was sold by her father, John Stamps, who received the money and converted it to his own use; and that he also received the hire and profits of the negroes so long as they remained slaves under the laws of Texas.
The defendants set up several defences, among others the statute of limitations of the State of Texas, but, on a trial by *621 jury, Holt recovered a judgment for $8692.93. From this judgment an appeal was taken to the Supreme Court of the State, and referred, by consent of parties, to the Commissioners of Appeal, by whom it was confirmed, and this affirmance was made the judgment of the Supreme Court.
There were several assignments of error in the hearing before the Commissioners of Appeal, but the only one which we can consider is that growing out of the plea of the statute of limitations.
The cause of action in this case accrued before the outbreak of the war, the mother having died in 1857, and Malvina Stamps was a minor during all the time preceding the insurrection. It seems that the legislature of Texas had passed several acts suspending the operation of the statutes of limitations during the war. But in 1866 a law was passed which enacted that these statutes, which had been suspended during this time, should again commence running on the 2d day of September of that year. At this time Malvina Stamps was of age and unmarried, and the statute then began to run against her in this case, and would become a bar in two years. This time elapsed without any suit brought on the claim. It was, therefore, as the Commissioners of Appeal admit, then barred by the statute. But in 1869 the State of Texas, which had not yet been reinstated and accepted by the two houses of Congress as in her old relations, made a new Constitution which, it was declared in the ordinance submitting it to the vote of the people, should take effect when it was accepted by Congress, which was afterwards done.
Article 12, section 43, of this Constitution is in these words: "The statutes of limitations of civil suits were suspended by the so-called act of secession of the 28th of January, 1861, and shall be considered as suspended within this State, until the acceptance of this Constitution by the United States Congress."
The District Court of Washington County, and the Commissioners of Appeal, following many previous decisions of the Supreme Court of the State, held that this provision removed the bar of the statute of limitations, though before its taking *622 effect the time had elapsed necessary to make the bar complete in this case.
The defendants, both by plea and by prayers for instruction to the jury, and in argument before the Commissioners of Appeal, insisted that the bar of the statute, being complete and perfect, could not, as a defence, be taken away by this constitutional provision, and that, to do so, would violate that part of the Fourteenth Amendment to the Constitution of the United States which declares that no State shall "deprive any person of life, liberty, or property without due process of law."
This writ of error to the State court is founded on that proposition, and we must inquire into its soundness.
The action is based on contract. It is for hire of the negroes used by the father, and for the money received for the land of his daughter, sold by him. The allegation is of indebtedness on this account, and the plea is that the action is barred by the statute of limitations. It is not a suit to recover possession of real or personal property, but to recover for the violation of an implied contract to pay money. The distinction is clear, and, in the view we take of the case, important.
By the long and undisturbed possession of tangible property, real or personal, one may acquire a title to it, or ownership, superior in law to that of another, who may be able to prove an antecedent and, at one time, paramount title. This superior or antecedent title has been lost by the laches of the person holding it, in failing within a reasonable time to assert it effectively; as, by resuming the possession to which he was entitled, or asserting his right by suit in the proper court. What the primary owner has lost by his laches, the other party has gained by continued possession, without question of his right. This is the foundation of the doctrine of prescription, a doctrine which, in the English law, is mainly applied to incorporeal hereditaments, but which, in the Roman law, and the codes founded on it, is applied to property of all kinds.
Mr. Angell, in his work on Limitations of Actions, says that the word limitation is used in reference to "the time which is prescribed by the authority of the law (auctoritate legis, 1 Co. Litt. 113) during which a title may be acquired to property by *623 virtue of a simple adverse possession and enjoyment, or the time at the end of which no action at law or suit in equity can be maintained;" and in the Roman law it is called Prscriptio.
"Prescription, therefore (he says), is of two kinds  that is, it is either an instrument for the acquisition of property, or an instrument of an exemption only from the servitude of judicial process." Angell on Limitations, §§ 1, 2.
Possession has always been a means of acquiring title to property. It was the earliest mode recognized by mankind of the appropriation of anything tangible by one person to his own use, to the exclusion of others, and legislators and publicists have always acknowledged its efficacy in confirming or creating title.
The English and American statutes of limitation have in many cases the same effect, and, if there is any conflict of decisions on the subject, the weight of authority is in favor of the proposition that, where one has had the peaceable, undisturbed, open possession of real or personal property, with an assertion of his ownership, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title  a title superior to that of the latter, whose neglect to avail himself of his legal rights has lost him his title. This doctrine has been repeatedly asserted in this court. Leffingwell v. Warren, 2 Black, 599; Croxall v. Shererd, 5 Wall. 268, 289; Dickerson v. Colgrove, 100 U.S. 578, 583; Bicknell v. Comstock, 113 U.S. 149, 152. It is the doctrine of the English courts, and has been often asserted in the highest courts of the States of the Union.
It may, therefore, very well be held that, in an action to recover real or personal property, where the question is as to the removal of the bar of the statute of limitations by a legislative act passed after the bar has become perfect, such act deprives the party of his property without due process of law. The reason is, that, by the law in existence before the repealing act, the property had become the defendant's. Both the legal title and the real ownership had become vested in him, and to give the act the effect of transferring this title to plaintiff, would be to deprive him of his property without due process of law.
*624 But we are of opinion that to remove the bar which the statute of limitations enables a debtor to interpose to prevent the payment of his debt stands on very different ground.
A case aptly illustrating this difference in the effect of the statute of limitations is found in Smart v. Baugh, 3 J.J. Marsh. 364, in which the opinion was delivered by Chief Justice Robertson, whose reputation as a jurist entitles his views to the highest consideration. The action was detinue for a slave, and the defendant having proved his undisturbed possession of the slave for a period of time which would bar the action, but having failed to plead the statute of limitations, the question was whether he could avail himself of the lapse of time. "The plea (said the court) is non detinet in the present tense, and under this plea anything which will show a better right in the defendant than in the plaintiff may be admitted as competent evidence. The plea puts in issue the plaintiff's right. Five years uninterrupted adverse possession of a slave not only bars the remedy of the claimant out of possession, but vests the absolute legal right in the possessor. Therefore, proof of such possession may show that the claimant has no right to the slave and cannot recover. Consequently it would seem to result, from the reason of the case, that the adverse possession may be proved under the general issue." Answering the objection that in assumpsit and other actions the statute to be available must be pleaded, and by analogy should be pleaded in that case, he says: "The same reason does not apply to assumpsit, because the statute of limitations does not destroy the right in foro conscienti to the benefit of assumpsit, but only bars the remedy if the defendant chooses to rely on the bar. Time does not pay the debt, but time may vest the right of property." Again he says: "This is perfectly true in detinue for a slave, because, in such a case, the lapse of time has divested the plaintiff of his right of property, and vested it in the defendant... . But it is not so in debt, because the statute of limitations does not destroy nor pay the debt." "This (he says) has been abundantly established by authority... . A debt barred by time is a sufficient consideration for a new assumpsit. The statute of limitations only disqualifies the *625 plaintiff to recover a debt by suit if the defendant rely on time in his plea. It is a personal privilege, accorded by law for reasons of public expediency; and the privilege can only be asserted by plea."
The distinction between the effect of statutes of limitation in vesting rights to real and personal property, and its operation as a defence to contracts, is well stated in Jones v. Jones, 18 Ala. 248. See also Langdell's Equity Pleading, §§ 118 et seq.
We are aware that there are to be found, in the opinions of courts of the States of the Union, expressions of the idea that the lapse of time required to bar the action extinguishes the right, and that this is the principle on which the statutes of limitation of actions rest.
But it will be found that many of these are in cases where the suits are for the recovery of specific real or personal property, and where the proposition was true, because the right of the plaintiff in the property was extinguished and had become vested in the defendant. In others, the Constitution of the State forbade retrospective legislation. That the proposition is sound, that, in regard to debt or assumpsit on contract, the remedy alone is gone and not the obligation, is obvious from a class of cases which have never been disputed.
1. It is uniformly conceded, that the debt is a sufficient consideration for a new promise to pay, made after the bar has become perfect.
2. It has been held, in all the English courts, that, though the right of action may be barred in the country where the defendant resides or has resided, and where the contract was made, so that the bar in that jurisdiction is complete, it is no defence, if he can be found, to a suit in another country.
In the case of Williams v. Jones, 13 East, 439, the contract sued on was made in India, and by the law of limitations of that jurisdiction the right of action was barred. But the recovery on it was allowed in England on the ground that the bar did not exist in England, and the right itself had not been lost. Lord Ellenborough said: "Here there is only an extinction of the remedy in the foreign court, according to the *626 law stated to be received there, but no extinction of the right." Bayley, Justice, said: "The statute of limitations only bars the plaintiff's remedy and not the debt, and the extent of the defendant's argument is only to show, that the remedy is barred in India, but that does not show it to be barred here."
The decisions are numerous to the same effect in the American courts. In the case of Le Roy v. Crowninshield, 2 Mason, 151, Judge Story had conceded that the authorities were that way, but intimated that, if the question were res nova, sound principle might require a different decision. But in the case of Townsend v. Jemison, 9 How. 407, Mr. Justice Wayne says that, in the previous case of McElmoyle v. Cohen, 13 Pet. 312, in which Judge Story participated, he concurred in the doctrine that, on principle as well as authority, the bar of the statute in one State cannot be pleaded as a defence in the courts of another State, though the contract be made in the former.
In this case of Townsend v. Jemison the opinion of the court contains an elaborate examination of the whole question. It explains the difference between statutes whose effect is to vest title to property by adverse possession, and those which merely affect the remedy, as in case of contract. The result of it is summed up in a single sentence: "The rule in the courts of the United States, in respect to pleas of the statutes of limitation, has always been that they strictly affect the remedy and not the merits." p. 412. Again: "The rule is that the statute of limitations of the country in which the suit is brought, may be pleaded to bar a recovery upon a contract made out of its political jurisdiction, and that the limitation of the lex loci contractus cannot be." p. 414. And it is said that in the cases decided in England on this subject there has been no fluctuation.
The case before the court was an action brought in Alabama against a citizen of Mississippi, on a contract made in the latter State, and which, by the laws of that State, was barred by the lapse of time. In the case of McElmoyle v. Cohen, the question was "whether the statute of limitations of the State *627 of Georgia can be pleaded to an action in that State upon a judgment rendered in the State of South Carolina."
The court, in its opinion, says this "will be determined by settling what is the nature of a plea of the statute of limitations. Is it a plea that settles the right of a party on a contract or judgment, or one that bars the remedy? Whatever diversity of opinion there may be among jurists on this point, we think it well settled to be a plea to the remedy; and, consequently, that the lex fori must prevail." p. 327. So well is this doctrine established, that many States of the Union have made it a part of their statute of limitations, that, when the action is barred by the law of a State in which defendants had resided, it shall also be a bar to an action in those States.
There are numerous cases where a contract incapable of enforcement for want of a remedy, or because there is some obstruction to the remedy, can be so aided by legislation as to become the proper ground of a valid action; as in the case of a physician practising without license, who was forbidden to compel payment for his service by suit. The statute being repealed which made this prohibition, he recovered in the court a judgment for the value of his services on the ground that the first statute only affected the remedy. Hewitt v. Wilcox, 1 Met. (Mass.) 154. Of like character is the effect of a repeal of the laws against usury, in enabling parties to recover on contracts in which the law forbade such recovery before the repeal. Wood v. Kennedy, 19 Ind. 68; Welch v. Wadsworth, 30 Conn. 149; Butler v. Palmer, 1 Hill, 324; Hampton v. Commonwealth, 19 Penn. St. 329; Baugher v. Nelson, 9 Gill, 304.
In all this class of cases the ground taken is, that there exists a contract, but, by reason of no remedy having been provided for its enforcement, or the remedy ordinarily applicable to that class having, for reasons of public policy been forbidden or withheld, the legislature, by providing a remedy where none exists, or removing the statutory obstruction to the use of the remedy, enables the party to enforce the contract, otherwise unobjectionable.
Such is the precise case before us. The implied obligation *628 of defendant's intestate to pay his child for the use of her property remains. It was a valid contract, implied by the law before the statute began to run in 1866. Its nature and character were not changed by the lapse of two years, though the statute made that a valid defence to a suit on it. But this defence, a purely arbitrary creation of the law, fell with the repeal of the law on which it depended.
It is much insisted that this right to defence is a vested right, and a right of property which is protected by the provisions of the Fourteenth Amendment.
It is to be observed that the word vested right is nowhere used in the Constitution, neither in the original instrument nor in any of the amendments to it.
We understand very well what is meant by a vested right to real estate, to personal property, or to incorporeal hereditaments. But when we get beyond this, although vested rights may exist, they are better described by some more exact term, as the phrase itself is not one found in the language of the Constitution.
We certainly do not understand that a right to defeat a just debt by the statute of limitations is a vested right, so as to be beyond legislative power in a proper case. The statutes of limitation, as often asserted and especially by this court, are founded in public needs and public policy  are arbitrary enactments by the law-making power. Tioga Railroad v. Blossburg and Corning Railroad, 20 Wall. 137, 150. And other statutes, shortening the period or making it longer, which is necessary to its operation, have always been held to be within the legislative power until the bar is complete. The right does not enter into or become a part of the contract. No man promises to pay money with any view to being released from that obligation by lapse of time. It violates no right of his, therefore, when the legislature says, time shall be no bar, though such was the law when the contract was made. The authorities we have cited, especially in this court, show that no right is destroyed when the law restores a remedy which had been lost.
An instructive case on this subject is that of Foster et al. v. *629 The Essex Bank, 16 Mass. 245. The charter of the bank being about to expire in 1819, the legislature of Massachusetts passed a law continuing the existence of all corporations for the space of three years after the expiration of their charters, for the purpose of prosecuting and defending suits, and enabling them to settle and close their concerns and divide their capital stock. To a suit brought against the bank after its charter had expired, but within the three years allowed by this statute, it was insisted that the statute of 1819 was void, as being retrospective in its operation, and interfering with vested rights. The court said: "We cannot discover any principle by which it can be decided that this statute is void. It does not infringe or interfere with any of the privileges secured by the charter, unless it be considered a privilege to be secured from payment of debts or the performance of contracts, and this is a kind of privilege which, we imagine, the Constitution was not intended to protect; ... and a legislature which, in its acts not expressly authorized by the Constitution, limits itself to correcting mistakes, and providing remedies for the furtherance of justice, cannot be charged with violating its duty or exceeding its authority."
We are unable to see how a man can be said to have property in the bar of the statute as a defence to his promise to pay. In the most liberal extension of the use of the word property, to choses in action, to incorporeal rights, it is new to call the defence of lapse of time to the obligation to pay money, property. It is no natural right. It is the creation of conventional law.
We can understand a right to enforce the payment of a lawful debt. The Constitution says that no State shall pass any law impairing this obligation. But we do not understand the right to satisfy that obligation by a protracted failure to pay. We can see no right which the promisor has in the law which permits him to plead lapse of time instead of payment, which shall prevent the legislature from repealing that law, because its effect is to make him fulfil his honest obligations.
In the Supreme Court of the State of Texas this question came up, within two years after the adoption of the new Constitution, *630 in the case of Bender v. Crawford, 33 Texas, 745, and the constitutional provision repealing all statutes of limitation formerly in existence was held valid. The case was well considered, and has been adhered to ever since.
Among the cases on the subject referred to in the opinion of the Commissioners of Appeal in the present case, are Rivers v. Washington, 34 Texas, 267; Dwight v. Overton, 35 Texas, 390; Moseley v. Lee, 37 Texas, 479; Bentinck v. Franklin, 38 Texas, 458; Wood v. Welder, 42 Texas, 396; and Lewis v. Davidson, 51 Texas, 251.
The judgment of the Supreme Court of Texas is
Affirmed.
MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE HARLAN, dissenting.
I feel obliged to dissent from the opinion of the court in this case. I think that when the statute of limitations gives a man a defence to an action, and that defence has absolutely accrued, he has a right which is protected by the Fourteenth Amendment of the Constitution from legislative aggression. That clause of the amendment which declares that "no State shall deprive any person of life, liberty, or property without due process of law," was intended to protect every valuable right which a man has. The words life, liberty, and property are constitutional terms, and are to be taken in their broadest sense. They indicate the three great subdivisions of all civil right. The term "property," in this clause, embraces all valuable interests which a man may possess outside of himself, that is to say, outside of his life and liberty. It is not confined to mere tangible property, but extends to every species of vested right. In my judgment, it would be a very narrow and technical construction to hold otherwise. In an advanced civilization like ours, a very large proportion of the property of individuals is not visible and tangible, but consists in rights and claims against others, or against the government itself.
Now, an exemption from a demand, or an immunity from prosecution in a suit, is as valuable to the one party as the right to the demand or to prosecute the suit is to the other. *631 The two things are correlative, and to say that the one is protected by constitutional guaranties and that the other is not, seems to me almost an absurdity. One right is as valuable as the other. My property is as much imperiled by an action against me for money, as it is by an action against me for my land or my goods. It may involve and sweep away all that I have in the world. Is not a right of defence to such an action of the greatest value to me? If it is not property in the sense of the Constitution, then we need another amendment to that instrument. But it seems to me that there can hardly be a doubt that it is property.
The immunity from suit which arises by operation of the statute of limitations is as valuable a right as the right to bring the suit itself. It is a right founded upon a wise and just policy. Statutes of limitation are not only calculated for the repose and peace of society, but to provide against the evils that arise from loss of evidence and the failing memory of witnesses. It is true that a man may plead the statute when he justly owes the debt for which he is sued; and this has led the courts to adopt strict rules of pleading and proof to be observed when the defence of the statute is interposed. But it is, nevertheless, a right given by a just and politic law, and, when vested, is as much to be protected as any other right that a man has.
The fact that this defence pertains to the remedy does not alter the case. Remedies are the life of rights, and are equally protected by the Constitution. Deprivation of a remedy is equivalent to a deprivation of the right which it is intended to vindicate, unless another remedy exists or is substituted for that which is taken away. This court has frequently held that to deprive a man of a remedy for enforcing a contract is itself a mode of impairing the validity of the contract. And, as before said, the right of defence is just as valuable as the right of action. It is the defendant's remedy. There is really no difference between the one right and the other in this respect.
It is said that the statutory defence acquired and perfected in one State or country is not, or may not be, a good defence in another. This, if it were true, proves nothing to the purpose. *632 It is a vested right in the place where it has accrued, and is an absolute bar to the action there. This is a valuable right, although it may be ineffective elsewhere.
Again, it is said that a debt barred by the statute is a good consideration for a promise to pay it; which shows that the statute does not extinguish the debt. This is no answer to the position that the statutory defence is a valuable and an absolute right. A new promise is an implied admission that the debt has not been paid, and amounts to a voluntary waiver of the statute.
I am unable to yield assent to any of the specious arguments advanced to show that the defence of the statute, when it has once vested, is an imperfect right which the legislature may, at its mere will, abrogate and take away. I think it is then a vested right, and that vested rights are a species of property which the Fourteenth Amendment of the Constitution was intended to protect from adverse State legislation. The suggestion that the words "vested rights" are not to be found in the Constitution does not prove that there are no such rights. The name of the Supreme Being does not occur in the Constitution; yet our national being is founded on a tacit recognition of His justice and goodness, and the eternal obligation of His laws.
A few of the authorities sustaining the views which I entertain on this subject will be referred to.
On the purpose and object of statutes of limitation, Chief Justice Marshall, in Clementson v. Williams, 8 Cranch, 72, 74, says: "The statute of limitations was not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of which may be lost."
In the following cases the general principle is laid down, that, if the time limited by statute for commencing a suit expires whilst the statute is in force, and before the suit is brought, the right to bring the suit is barred, and no subsequent statute can renew the right: McKinney v. Springer, 8 Blackford, 506; Piatt v. Vattier, 1 McLean, 146; Stipp v. Brown, 2 Ind. 647; Davis v. Minor, 1 How. (Mississippi) 183; Bradford v. Brooks, 2 Aiken (Vt.) 284; Baldro v. Tolmie, 1 *633 Oregon, 176; Girdner v. Stephens, 1 Heiskell, 280; Bigelow v. Bemis, 2 Allen, 496; Ryder v. Wilson, 12 Vroom (41 N.J.L.) 9, 11. See also Prentice v. Dehon, 10 Allen, 353, and Ball v. Wyeth, 99 Mass. 338.
In Bigelow v. Bemis, which was an action on contract, the Supreme Judicial Court of Massachusetts, speaking by Ch. J. Bigelow, says: "It is well settled that it is competent for the legislature to change statutes prescribing a limitation to actions, and that the one in force at the time of suit brought is applicable to the cause of action. The only restriction on the exercise of this power is, that the legislature cannot remove a bar or limitation which has already become complete, and that no new limitation shall be made to affect existing claims without allowing a reasonable time for parties to bring actions before their claims are absolutely barred by a new enactment." In Ryder v. Wilson's Executors, which was a suit on promissory notes, the Supreme Court of New Jersey, speaking by Ch. J. Beasley, says: "The decisions of the courts, so far as my research has extended, are wholly in accord on this subject, and, with one voice, they declare that, when a right of action has become barred under existing laws, the right to rely upon the statutory defence is a vested right that cannot be rescinded or disturbed by subsequent legislation." In Davis v. Minor, which was an action on contract, Chief Justice Sharkey says: "A bar created by the statute of limitations is as effectual as payment; and a defendant cannot be deprived of the benefit of such payment, nor of the evidence to support it; and, having provided himself with evidence sufficient and legal at the time of payment, no law can change the nature, or destroy the sufficiency, of the evidence." Judge Cooley, discussing this subject, says: "Regarding the circumstances under which a man may be said to have a vested right to a defence against a demand made by another, it is somewhat difficult to lay down a comprehensive rule which the authorities will justify. It is certain that he who has satisfied a demand cannot have it revived against him, and he who has become released from a demand by the operation of the statute of limitations is equally protected. In both cases the demand *634 is gone, and to restore it would be create a new contract for the parties  a thing quite beyond the power of the legislature." Cooley's Const. Lim., 3d Ed. [429]* 369. In my opinion the judgment of the Supreme Court of Texas should be reversed.
I am authorized to say that MR. JUSTICE HARLAN concurs in this opinion.