De Baca v. Pueblo

Feb 7, 1900
837
Reporters:
Before:
Mills
MILLS, C. J.

Appellate practice; findings of trial court. i. In this case, a jury was waived and the cause was tried by the court, which held in favor of the Pueblo, the plaintiff below. We have carefully considered ‍​‌‌​​‌‌​​​​​​​‌​‌​​​‌​​​‌​‌​​​‌​​‌‌​​‌‌‌​​‌‌​​‌‌​‌​​‌‌‌​​‌​​‌‌​​​‌‌‌​​‌‌​​​​‌​‌‌​‌​‌​​‌‌‌​‌​‌​‌‌‍all of the evidence introduced at the trial, and find that there is testimony to support the findings on which the decree is based. The findings of fact made , , . , , . ... , by the mdge who decides a case without a jury are entitled to as much if not more consideration than the findings of a master or referee. As the decree in this case does not seem to ‍​‌‌​​‌‌​​​​​​​‌​‌​​​‌​​​‌​‌​​​‌​​‌‌​​‌‌‌​​‌‌​​‌‌​‌​​‌‌‌​​‌​​‌‌​​​‌‌‌​​‌‌​​​​‌​‌‌​‌​‌​​‌‌‌​‌​‌​‌‌‍be manifestly wrong, and as we are bound by the repeated decisions of this court, the decree will not be disturbed. Davis v. Schwartz, 155 U. S. 631; Kimberly v. Arms, 129 U. S. 524; Zanz v. Stover, 2 N. M. 29; Torlina v. Torchlight, 5 N. M. 148; De Cordova v. Korte, 7 N. M. 678; Field v. Romero, 7 N. M. 630; Gentile v. Kennedy, 8 N. M. 347; Givens v. Veeder, 50 Pac. Rep. ‍​‌‌​​‌‌​​​​​​​‌​‌​​​‌​​​‌​‌​​​‌​​‌‌​​‌‌‌​​‌‌​​‌‌​‌​​‌‌‌​​‌​​‌‌​​​‌‌‌​​‌‌​​​​‌​‌‌​‌​‌​​‌‌‌​‌​‌​‌‌‍16; Express Co. v. Walker, 54 Pac. 875; First Natl. Bank v. McClellan, 58 Pac. 347; Johnson v. Gallegos, decided at this term.

Practice: trial: appointment of interpreter. 2. The court committed no error in appointing one of the Indians as interpreter. The . . . appointment of an interpreter is m the discretion of the court, and is not appealable. 11 Am. and Eng. Ency. of Law, p. 525; People v. Ramirez, 56 Cal. 533.

acequia: right to water flowing ‍​‌‌​​‌‌​​​​​​​‌​‌​​​‌​​​‌​‌​​​‌​​‌‌​​‌‌‌​​‌‌​​‌‌​‌​​‌‌‌​​‌​​‌‌​​​‌‌‌​​‌‌​​​​‌​‌‌​‌​‌​​‌‌‌​‌​‌​‌‌‍through. 3. The ditch in question was built by the Indians very many years ago. It has been maintained by and belongs to them, and we are unable to see how their failure to elect a mayordomo and work the acequia, under the laws of the Territory regulating such elec- . . , tion and work, would justify the plaintiffs in error in wrongfully appropriating water flowing through it, which the court below finds does ‍​‌‌​​‌‌​​​​​​​‌​‌​​​‌​​​‌​‌​​​‌​​‌‌​​‌‌‌​​‌‌​​‌‌​‌​​‌‌‌​​‌​​‌‌​​​‌‌‌​​‌‌​​​​‌​‌‌​‌​‌​​‌‌‌​‌​‌​‌‌‍not belong to them.

There is no error in the decree complained of, and the same is therefore affirmed.

Parker and McFie, JJ., concur. Crumpacker, J., having tried the case below, did not participate in this decision; Leland, J., absent.