10 Mont. 500 | Mont. | 1891
The appeal herein is from an order overruling defendants’ motion for a new trial.
The cause of action alleged by plaintiff is to the effect that defendants, during the year 1889, wrongfully diverted and deprived plaintiff of the use of 550 inches of the waters of Burnt Fork Creek, claimed by plaintiff by virtue of prior appropriation and use, for the purpose of irrigating plaintiff’s tract of 320 acres of land situate in Missoula County.
The relief demanded by plaintiff is: (1) The recovery of $2,000 damage alleged, to have been sustained by reason of such wrongful and continued diversion of said water during the year 1889. (2) That defendants be perpetually enjoined from further interference with plaintiff’s alleged water right.
A jury trial was had, which resulted in a verdict in plaintiff’s favor, to the effect that he was entitled to 550 inches of the waters of Burnt Fork Creek, as against all of the defendants; and that plaintiff had suffered damage in the sum of $1,535.88 by reason of defendants wrongfully depriving plaintiff of the use of said waters during the year 1889, which damage was apportioned against twelve defendants in divers sums, found by the jury and set forth in the verdict. The grounds upon which a new trial is sought, as recited in the notice of intention to move therefor, are: “(1) Errors of law committed and occurring at the trial of said cause duly excepted to. (2) Insufficiency of evidence to justify the verdict of the jury. (3) That the verdict is contrary to law. (4) Excessive damages.” Motion for new trial was made upon a statement of the case, and upon the hearing thereof was overruled; thereupon defendants appealed from the order overruling the motion.
Appellants further complain of the modification of a certain instruction in the following respect. The court gave the jury an instruction as follows : “That in determining the amount of the water plaintiff is entitled to, you are instructed to find the same in inches measured in the manner provided by the laws of Montana for the measurement of water, and which is as follows: ” This instruction continues to give in detail and by illustration the unit of measurement of water appropriated as provided by statute. (Comp. Stats, p. 997, § 1262.) So far no complaint is made against this instruction. But it appears that as originally drawn, it contained a clause as follows: “In order for you to find the amount of water plaintiff is entitled to, the evidence and your finding must conform to the above
Appellants assign two other points wherein they allege the court erred in refusing to give certain instructions asked for on their behalf, relating to the measure, and manner of estimating, damages resulting from diverting and depriving plaintiff of the water to which he claimed title. By a careful review of the instructions given, we find that the court embodied in the
Passing from assignments of error in relation to the giving, and refusing to give, instructions to the jury, we find that all other specifications set forth in the record relate to “particulars in which the evidence is insufficient to justify the verdict.” (§ 298, Code Civ. Proc.) These latter specifications assert in effect the propositions which will be treated in the order stated, as follows: —
1. That the evidence introduced on the part of plaintiff as to the capacity of his ditches was too uncertain to justify the finding of the jury in that respect; and that the evidence introduced on the part of the defendants as to the capacity of plaintiff’s ditches “was certain and definite.” A study of the evidence presented by the record shows that witnesses for the respective parties had made examinations and measurements of the plaintiff’s ditches and head-gates, and stated to the jury the dimensions and capacity thereof. As often occurs in controversies, there is considerable difference in the statement of witnesses for the respective parties as to the capacity of plaintiff’s ditches. It was the province of the jury to pass upon the credibility of witnesses and the weight of testimony and make a finding. It has often been announced by this court that where there is evidence to support the verdict, the same will not be disturbed because there is conflicting testimony upon the subject. (Lincoln v. Rodgers, 1 Mont. 217; Toombs v. Hornbuckle, 1 Mont. 286; Ming v. Truett, 1 Mont. 322; Travis v. McCormick, 1 Mont. 347; Territory v. Reuss, 5 Mont. 605; Ramsey v. Cortland Cattle Co. 6 Mont. 498.)
2. That the evidence is insufficient to sustain the verdict, because uncontradicted testimony on behalf of defendants showed that defendants did not continually use the water in controversy; but used the same only at certain specified periods of time, “ and that defendant Julian used the same only three days altogether.”
As to defendant Julian, the record shows that only nominal damages were assessed against him. The admission as to his having used said water three days, if the same belonged to plaintiff, is sufficient, without question, to sustain the nominal damage assessed. But it is not to be inferred from the above
3. That the verdict awarding the plaintiff damage is not sustained by the evidence, for the reason that the evidence as to the amount of damage sustained by plaintiff, by reason of being deprived of the use of said watei’, was too indefinite and uncertain to justify the verdict of the jury in that respect. In this connection appellants specify that the proper measure of damage was the net profit which plaintiff would have realized from the production of his land, had the same been irrigated, after deducting the expense necessarily involved in raising and marketing the same, “and there was no evidence before the jury as to the cost of seed planting and hauling said crop to market, which items should have been deducted from the value of the crop.” The record as we read it shows a state of facts contrary to appellants’ assertions, in the specification last mentioned. It appears from the record that plaintiff had appropriated his land for certain purposes by sowing and planting. Evidence was introduced on behalf of plaintiff tending to prove that had defendants not interfered and diverted said water belonging to plaintiff, he would have had enough to properly irrigate, and bring to maturity the crops which he had planted, with a result as to harvest that season averaging with.
Counsel for appellants in their brief present a number of questions which cannot be considered because no specification of errors in such matters is found in the record. (Code Civ. Proc. § 298.) We have carefully considered all questions presented by counsel founded on the errors in law, and particulars of insufficiency of evidence set forth in the record, and find no error therein. The verdict of the jury appears to be fully sustained by the evidence. The order overruling defendants’ motion for a new trial is affirmed with costs.