1 Mont. 111 | Mont. | 1869
This was an action brought by plaintiffs for damages for the diversion of water by the defendants, which the plaintiffs claimed by prior appropriation for mining purposes, tried at November term of the district court, 1868. Yerdict and judgment for defendants.
Defendants’ answer admits plaintiffs’ possession of said ditch; denies that ditch was of the capacity of two hundred and fifty inches, and alleges that at the time of appropriation ditch would convey one hundred inches and no more, and denies the diversion of any water belonging to plaintiffs. Answer further alleges that in August, 1866, defendants and those under whom they claim appropriated all the waters of said Gold creek then unappropriated, and constructed a ditch to convey same to Pioneer gulch, which ditch was of the capacity to convey six hundred inches, more or less, and known as Pioneer ditch, and takes the waters of said Gold creek about two miles above the head of said De Long ditch; that when Pioneer ditch was constructed De Long ditch would convey one hundred inches of water from said Gold creek and no more; that defendants were entitled to all the waters of said creek except one hundred inches, and had always allowed one hundred inches to flow down said De Long ditch without diversion. This case came up oh order overruling motion for new trial, and errors and exceptions stated in the statement for same, as follows:
1. On the trial defendants ask plaintiffs’ witness, if he did not in fall of 1866, when mining in Pike’s Peak gulch, convey water from Pioneer gulch to where he was mining ? which was objected to by plaintiffs as irrelevant, overruled and exceptions. 2. Plaintiffs’ witness, Cook, testified that the
Plaintiffs excepted to the court instructing the jury that plaintiffs admitted in their pleading that defendants had always permitted one hundred inches of water to flow down said Gold creek to said De Long ditch, because alleged in answer and no replication being filed by plaintiffs. The court erred in this instruction. Section 38, Civil Code, provides that the only pleadings on the part of the plaintiff shall be complaint, demurrer or replication to defendant’s answer, and on the part of defendant shall be demurrer to complaint, or replication or answer to the complaint. Section 50 provides that where the answer contains new matter plaintiff may demur or move to strike out sham and irrelevant answers, or such part thereof as may be irrelevant, immaterial, etc. Section 65 provides that any material allegation of the complaint or cross-complaint, not controverted by the answer, shall, for the purposes of the action, be taken as true, and that the statement of matters in avoidance
Plaintiffs also rely on exceptions taken to the refusal of
Several instructions were asked by plaintiffs and refused; some asked by defendants and given, and several given by the court. Upon examining the instructions it is not seen how the jury were misled, or plaintiffs prejudiced by the ruling of the court, except it be in giving the second instruction given by court at request of the defendants, which instructs the jury that the measure of plaintiffs’ right to water was the number of inches the Be Long ditch would carry through to the place where it is to be used, at the time of defendants’ appropriation in the fall of 1866. The measure of plaintiffs’ right would be the amount of water the said ditch would convey from said Gold creek without running over its banks, and not the number of inches it might convey to the place to be used, some miles, perhaps, distant. In running some distance to mines, much water might be lost by evaporation and seepage, depending on season of the year and state of the weather; and the amount of water appropriated could only be estimated by measuring it according to miners’ measurement, near the head of the ditch, when it was full, or conveying all it had capacity to. But, as the jury specially find, from the evidence, that the ditch was only of the capacity to convey one hundred inches to a claim near by; and, further, that the plaintiffs appropriated but one hundred inches of water of said creek, and the evidence favors the findings, the jury were not misled by this instruction. Courts will not disturb a verdict where there is evidence to support it, or reverse a judgment when, from the whole record, justice appears to have been done. The affidavits of newly-discovered evidence do not show what diligence, or that any, was used to obtain it, and the evidence shown is cumulative.
Exceptions overruled.