Edgemont Imp. Co. v. N. S. Tubbs Sheep Co.

22 S.D. 142 | S.D. | 1908

Lead Opinion

HANEY, P. J.\

This is an action to determine.adverse claims to certain'■ real property, -and' ■ a water- right. Plaintiff- alleges, in substance, that it is the owner and en-titléd to the possession of - a certain dam, dam site, and reservoir site,- including - the ■ land ‘ covered thereby, a certain irrigation ditch known as the “Edgemont Canal,” a strip of -land 50 feet in width extending the length of such canal’-and a certain water right located and established by'one Frdncis■ C. Gfable, December 7; 1893; that defendants claim some right or interest in -said property adverse' to the' plaintiff ;■ and that they' have' unlawfully entered upon 'the premises- described in the complaint and ejected the plaintiff therefrom.' Defendants, in effect admit they are in possession.-of the premises in controversy, deny that plaintiff us the owner thereof, and allege that whatever rights it may have formerly acquired- were lost by-abandonment. They also allege that the plaintiff is estopped from asserting claim to the property -by reason of its having permitted defendants to expend large- sums of money in repairing the' dam and canal. The - cause having been tried by the court without-a jury, a decision rendered in favor of the plaintiff and deféndants’ application for a new trial denied, this appeal was'taken. ■ • ■ ■

■ -."Appended -to appellants’' abstract,!-.containing -161- pages, are 26 assignments of 'error, many of which embrace several-' distinct-rulings of- the- trial-court. Appellants’ brief; containing 40 pages, nowhere refers to any assignment of error. ■ .Assignments of - error not discussed in appellants’ brief-will be presumed to-have-been abandoned, and will not-be considered. Nordin v. Berner, 15 S. D., 611, 91 N. W. 308; Scott v. Gage, 16 S. D. 285, 92 N. W., 37; Dowdle v. Cornue, S. D. 126, 68 N. W. 194. “Attorney's should assign -such’-errors • only as -are to be presented'to-the appellate court on-the-argument-j'-and-in preparing their-briefs-should plainly and concisely state,fije .points upon...which -they rely-for ¡affirmance .qr *145reversal, and take them up seriatim. One live point is better than any number of weakly ones, and one well-established legal principle or conclusion applicable to the case before the court, or clearly demonstrated fact decisive of the case, is more effectual than volumes of false or abstract reasoning, or misty or reckless statements.” McCormick v. Phillips, 4 Dak. 506, 547, 34 N. W. 29. Causes brought to this court by writ of error or on appeal are not triable de novo. The rulings, decisions, and judgments of trial courts are presumptively right. It is not the duty of this court to seek for reasons to reverse the circuit court. The only logical and lawyerlike -way of presenting a case for review is to point out the particular rulings alleged to-be erroneous in the order in which they are made. Statements concerning the evidence are never material except in cpnnection with some ruling on the admission or rejection of testimony, or some particular wherein the evidence is alleged to be insufficient to sustain the verdict or decision. There is, threfore, nothing in appellants’ brief deserving attention. Nevertheless the following statements will be briefly noted: (1) “We contend that under the evidence in the case the plaintiff is not entitled to maintain the action.” Manifestly this alludes to no assignment of error; refers to no ruling of the court, and points out no particular -wherein the evidence is insufficient to sustain the decision. (2) “Further, we contend that the water right has been abandoned, and that contention is supported by the following facts established by the evidence.” The only facts which this court can consider are those established by the pleadings and the decision of the trial court. The learned circuit judge found as a fact, and-his finding is amply sustained by the evidence, that “there was no intention on the part of the said Edgemont company to abandon its said water right, ditch, or canal, or any of the appurtenances thereto belonging.” It is well settled that mere nonuser of water does not amount to abandonment, nor is mere lapse of time alone sufficient to establish abandonment, hr all cases abandonment is a question of intention. 17 Am. & Eng. Ency. Law, 517. (3) “Defendants contend that the court erred in not finding that the plaintiff was estopped from now claiming the property.” This *146contention is not available, for the reason there is no' assignment of error to support it. A finding to that effect was not requested, and the absence of such a finding was not specified in the bill of exceptions or statement of the case upon which the motion for a new trial was based. As we understand the record, the only real issue was the alleged abandonment upon which defendants relied when they attempted to acquire the property in controversy, and upon which issue the learned court found in favor of the plaintiff.

The judgment and order appealed from are affirmed.





Concurrence Opinion

CORSON, J.

(concurring specially). I fully concur in affirming the judgment and order denying a new trial in this case, but I prefer to place my concurrence upon the ground that the record discloses no reversible error. Upon a careful examination of the abstract and brief of counsel I am satisfied that the findings of the court are fully supported by the evidence, that its conclusions of law are correct, and that the court committed no error in its rulings upon the admission or exclusion of evidence.