Ackroyd

Appeals from an order of the District Court of the United States for the District of Montana, Ackroyd v. Brady Irr. Co., D.C, 27 F.Supp. 503 , dismissing a c.omplaint and a complaint in intervention seeking' declaratory judgments, 28 U.S.C.A. 400. The appeals were consolidated.

For an understanding of the problems presented to us we narrate the following alleged facts. The right to gather and impound water from a certain run-off in Montana was secured by a private non-profit corporation called -Teton Co-operative Reservoir Company. This company’s corporate structure consists of .1,000 shares of stock and it is provided by its by-laws that each share shall be entitled to take. 1/1000 part of the water available for distribution. Sometime after its organization and after it had constructed a reservoir, ditches, etc., certain territory below the reservoir was organized under the laws of Montana as an irrigation district and it was called Bynum Irrigation District. This district looked to the Teton Reservoir for its supply of water and proceeded toward securing the same through the medium of share purchases of Teton Co-operative Reservoir Company stock. It proposed to issue…

(dissenting).

The judgment rendered on the promissory note in the state court was a lien “upon al) real property of the judgment debt- or not exempt from execution in the county” where it was rendered. Rev.Codes of Mont., 1935, § 9410. By § 9424, all “goods, chattels, moneys, and other property, both real and personal, or any interest therein of the judgment debtor, not exempt by law * * * are liable to execution”. The object of the instant suit is to obtain a decree that the state court judgment is not a lien on the real property in question, and that neither the real property nor the personalty is subject to levy on execution. Under the above statutes, the judgment is a lien on the real property, and both the realty and personalty are subject to execution, unless “exempt” therefrom.

Certain exemptions are set forth in the statutes. See § 9427 et seq. It is not contended that the property here in question comes within the terms of any of those statutes. It is contended that the property in question is exempt from execution under general principles of law, wholly independent of statute. While it may be under common-law that property held for public uses is not subject to levy…