13 P. 346 | Idaho | 1887
This ease, tried before the court without a jury, was brought to restrain the defendant from interfering with plaintiffs’ water ditch, and for damages for injury to the same. The defendant claims an interest in said ditch. The title to-, capacity of and cost of constructing the ditch were all in issue. There was also an issue as to the allegation that the defendant had obstructed the ditch, cut down its banks and flumes, and caused the waters thereof to run to waste. It was also alleged that defendant was committing waste of the wa~ ters of said ditch; that he threatened to continue the same, and would, unless restrained by injunction, damage and injure the ditch, which was plaintiffs’ property. All of which defendant denied.
The court found that plaintiffs and defendant had each an interest in the ditch, but failed to find the capacity of the ditch, or its cost, or the interest specifically that each party had therein. This became necessary in order to determine whether or not the defendant had taken more water from the ditch than he was entitled to. If the ditch is as large as alleged in the complaint, it must have a carrying capacity of about two thousand inches of water. It is only claimed that defendant drew therefrom seventy-five inches; yet, from anything appearing in the findings, the defendant’s interest may have been much greater than the plaintiffs’. How, then, are we to draw our conclusions of law? How can we determine the rights of the parties without these findings? Although there is an allegation of waste, and that defendant threatens to continue the same, and an issue upon this allegation, the court fails to find upon this issue, yet grants an injunction.
. The granting of an injunction restraining the defendant from using this water, except upon his own land, we think was error; the findings also being insufficient.
The judgment is reversed. Case remanded for a new trial.