No. 1,290 | Mont. | May 6, 1901
Lead Opinion
delivered the opinion of the Court.
This is an appeal from the judgment in the case and from an order denying a new trial. It is a suit wherein the plaintiff demands damages from the defendants for injury to his crops on certain lands in his possession, the said injury alleged to have occurred through the wrongful acts of the defendants in the year 1896 in their having checked the flow of the waters in question in a certain common ditch running from a common
It is alleged by the plaintiff, and admitted by the defendants, that they built, owned and held in common a certain ditch running from the said reservoir down to the point at which plaintiff constructed another ditch to cany the waters from the common ditch to his irrigable lands. The complaint alleged that the ditch running from the reservoir and the reservoir itself were owned by the defendants and plaintiff in the following proportions, — that is to say, plaintiff was the owner of a one-third undivided interest in the common ditch and a one-third undivided interest less one-seventh of one-eighth in the said reservoir, and that the defendants owned the remaining interests in the ditch and reservoir; whereas the defendants alleged that they owned fifteen twenty-seconds of the ditch and reservoir. It is alleged in the complaint, and admitted in the answer, that the reservoir and the main ditch at all times during the spring and summer of 1896 contained an abundance of water for tlie irrigation of the lands of the plaintiff and of the defendants. The complaint also stated that the said ditches furnished, and there flowed through them, a large volume of water down to certain head gates on the lands of the defendants, and that at two points on said ditch the defendants, without right, wrongfully, and intending to deprive the plaintiff of the use of said water, which belonged to the plaintiff, and to which he was entitled, and in order to prevent the same from flowing-on through said ditch to plaintiff’s lands, erected head gates at two points on said ditch, and stopped and checked the flow of the water in said ditch, so that the same ceased to flow in quantities sufficient to irrigate any of plaintiff’s crops. It was further alleged that the defendants so* checked the water, and erected said head gates in such manner, as to check and stop the flow of said water wilfully and maliciously, intending to deprive this plaintiff of the same, and without any reason therefor; that the water so checked and stopped in said ditch over-> flowed, and was needlessly wasted upon the lands of the defend
The defendants demurred to the complaint, stating, among other things, that the complaint did not state facts sufficient to constitute a cause of action, and that the complaint was uncertain in that it did not state the quantity of water wasted by the defendants, and, further, that it did not state the quantity required by the plaintiff over and above the amount received by him. Subsequently a stipulation withdrawing the demurrer and giving the defendants ten days in which to file an answer was made and entered into by respective counsel, and duly filed in said cause. Thereupon the defendants answered, and denied that the said lands of the plaintiff were deprived of water through any acts, wrongful or otherwise, of the defendants; and denied that they, or either of them, or any one else, constructed two or any head gates on any ditch without right or wrongfully, or with the intention of depriving plaintiff, or any one else, of the use of the water, or to prevent the water from flowing to' plaintiff’s lands or elsewhere. They denied that they, or either of them, or any one else, constructed any head 'gates whatever which could prevent the free flow of water in the plaintiff’s ditch or ditches, and denied that defendants’ head gates, or either ox
Upon the trial of the cause, after the swearing of the jury, upon the offer of evidence by the plaintiff, one M. S. Darling, county surveyor, the first witness, being sworn to testify, the defendants objected to any evidence being received under the1 complaint, for the reason that it did not state facts sufficient which would warrant a court in granting the plaintiff any relief.
In addition to the facts admitted, there is .proof, or evidence tending to prove, that:
The defendants, during the times referred to in the com-, plaint, had two ditches leading from the main ditch, — one 2 feet 8 inches wide by 2 feet deep, and the other 3.5 feet wide by 2 feet deep. About one-half mile down the Anderson ditch from the end of the main company ditch was a high point in the bottom of the said Anderson ditch, this point being higher than a head gate opening into one of the defendants’ laterals; 1.62 feet of water would run over this high point when the ditch was running full. In 1896 the head gate nearest the reservoir was a board across the lateral ditch, with dirt thrown in above it. Plaintiff did not get one-fiftieth of the water which he claimed. During May and June, 1896, there was plenty
Plaintiff offered to prove that he tendered his services to defendants to build up the levees, but defendants’ counsel objected, and the objection was sustained.
In the course of 'the trial a large number of witnesses were examined, some of them being persons who qualified as having
There was testimony in conflict with many of the alleged facts stated above.
The defendants assign as error the court’s overruling their objection toi the introduction upon the trial of any evidence under the complaint .upon the ground, then stated, that it did not state facts sufficient to entitle the plaintiff to any relief. The complaint is not conspicuous in the history of code pleading as an example to be followed, for it is redundant in many parts, and not explicit enough in others; but we do believe, and therefore hold, after careful consideration, that it does state facts sufficient to admit proof upon which the court, if satisfied of the. truth of the allegations, could afford relief. The complaint was wide open to demurrer for uncertainty, but this ground of demurrer was waived, as before herein stated.
The defendants complain that the court permitted the plaintiff to amend his. complaint after objection to the introduction of any evidence thereunder, after the jury was sworn, and then refused to grant them a continuance of the said cause. It is assumed in the briefs that the complaint was amended, but the record, while showing that permission to amend was given, does not disclose what, if any, amendment was made. We, having no means of knowing whether anything, material or otherwise, was added to the pleadings, cannot consider this assignment of alleged error.
To consider all the thirty-five particulars in which defendants claim in their brief that the decree of the court or its findings are erroneous, would require more space and labor than we think necessary. The main points are that the evidence fails toi support the findings, and that the decree is not supported by the findings; the principal reliance being upon the ground that the evidence does not show that the defendants used more than their share of the water, and that, if they did, the plaintiff was not damaged by their doing so, for the reason that his ditch would not carry water under safe conditions, or conditions that would allow defendants to use the water in common with him. They further complain “because the decree compels the defendants to forego the use of water two days in each week merely because plaintiff will not put his ditch upon established grade.”
As was the case in Carron v. Wood, 10 Mont. 500" court="Mont." date_filed="1891-03-15" href="https://app.midpage.ai/document/carron-v-wood-6638036?utm_source=webapp" opinion_id="6638036">10 Mont. 500, 26 Pac. 388, a study of the evidence presented by the record shows that witnesses for the respective parties had made examinations and measurements of the ditches and head gates, and stated to the jury the dimensions and capacity thereof. As it often happens in controversies, there is considerable difference in the statements of witnesses for the respective parties as to the size, capacity, grade and condition of ditches, head gates, and the nature and effect of any obstructions which may be therein.' It was the province of the jury h> pass upon the credibility of the witnesses and the weight of testimony, and to make findings. They did so> and the findings were adopted by the coum It has been often, announced by this court that, when there is
The court made its further finding “that the allegations of said complaint have been sustained.” We find nothing conflicting in the findings. We cannot say that they do not support the decree.
The parties did not own the water. They had a right to the use of it in common. They did not have a prior right. The defendants assume that’they were at all times entitled to take out two-thirds of the water, provided they left one-third thereof in quantity in the main ditch. This is error. If there were 1,200 inches in the ditch, and they needed and took out 800 inches at, say, a point 100 feet below the reservoir, there would be left 400 inches, one-third of the volume of water, with a journey of more than one mile to- go in warm weather, and over a slow grade, and through a ditch from 144 inches to 228 inches
Considering the relations of the parties to the contract under which they were to use the water, the findings against the defendants, the evidence in the case, and the obscure nature of the report of the testimony, we cannot say that the court did not do equity in its decree declaring that the plaintiff should-have the sole use of the water during two certain consecutive days of each week. This works no hardship toi the defendants, as it gives them the use of the water more than two-thirds of the time.
In the transcript appears an assignment “that the evidence is insufficient to sustain the finding that the plaintiff sustained $600 damages, or any damages whatever, at the hands of the defendants;” and it is further assigned that “'the decree is against the law, because the damages awarded by the court to the plaintiff are more than three times the amount that plaintiff suffered, under any view of the evidence.” Suffice it to say that each of these assignments is omitted from those relied on or mentioned in the brief of the appellant, and therefore no consideration is, raider the rules, given to either in this opinion.
For the reasons given in this opinion the judgment, decree and order overruling the motion for a new trial are affirmed.
Affirmed.
Rehearing
(Submitted June 3, 1901. Decided June 7, 1901.)
delivered the opinion of the Court.
In the matter of the motion of appellants for a rehearing, the court is of the opinion that the motion should be denied. Examination of the argument of appellants filed with the motion discloses the fact that the language and tone of the brief are disrespectful to this court. It will be sufficient- in this connection to quote the following paragraphs from the brief, to-wit:
“I realize that compared with many of the matters which draw so heavily upon the time and attention of the court that this case is a small one. It is, however, large for the parties interested, and its correct solution means as much or more to them as the proper disposition of the great cases means to the parties interested in them.
“It is of course to be regretted that the record is obscure in some parts, but this does not relieve the court from its obligation to study the record and try to understand it.
“Will the court kindly point out anywhere in the record any evidence which tends to overcome this 'prima, facie case made by plaintiff against himself.
“Now, I do not believe and I cannot believe that this court is ready to establish so absurd a principle of equity jurisprudence as to hold that when defendants hafl need of water and there was abundance in the reservoir and they could fill their ditches and laterals and at the same time let the main ditch run as full as it .could get, that they must stop the use of this water so as toi let plaintiff run water up hill, because he was so shiftless that he would not put his ditch to a proper grade; and yet that is just what this court does say in its opinion.
*341 “T do not believe that this court with its eyes open will perpetrate any such outrage as this.
“I deny the legal or moral right of this court to make the defendants assume the burden of compensating plaintiff for that which has resulted from his own fault, and the last quotation made above from the court’s opinion shows that it has undertaken to do this very thing.”
The only inference possible or proper to be drawn from this language is that it is not respectful. The arguments contained in the brief of counsel are not such as to convince this court that there is any reason why a brief, disrespectful in tone as this is, should be retained in the files and made the subject of further consideration. The brief is stricken from the files and the clerk is directed to return it to counsel for appellants. The motion for a rehearing is denied.
Motion denied.
Concurrence Opinion
I concur with the majority of the court in the order striking from the files the argument in the brief of counsel for appellants on motion for a rehearing, but I do not feel entirely satisfied with the judgment of affirmance and personally should not be averse to hearing the cause re-argued.
Order.
Bansom Cooper, -Esq., counsel for appellants, having made a satisfactory showing to this court that the language used by him in his brief on motion for a rehearing herein, was not intended to be disrespectful to the court-, the order heretofore made striking said brief from the files and denying a rehearing is revoked so far as it denies the motion, the court adhering to the opinion that the said brief was disrespectful in tone; and the motion is permitted to stand for further consideration after said Cooper shall have filed with the clerk and served upon
Done in open court this 10th day of June, 1901.
Motion for rehearing granted July 18, 1901.
Concurrence Opinion
On Eetiearing.
(Submitted October 1, 1901. Decided November 4, 1901.)
delivered the opinion of the Court.
This cause is before us on rehearing. We have again carefully considered the briefs and argument, additional briefs having been submitted. We are more'fully convinced of the correctness of our decision, the reasons for Avhich appear in the opinion rendered May 6, 1901.
It is more apparent uoav, after a rehearing, than upon the first consideration of this case, that the record is so obscure, - and the evidence so conflicting, that Ave cannot say that the evidence does not support the findings which are set out in the judgment.
We again emphasize the fact that Ave have no means of knowing how material the evidence Avas Avhich was given by those witnesses avIio referred to certain maps in such a way, indicating one unmarked point and another, that one cannot get any idea of their meaning in respect of such evidence.
The judgment and the order denying a neAv trial are affirmed.
Affirmed.
Concurrence Opinion
I concur.