Epp v. HintonEpp v. Hinton
- Reporters:
- , ,
- Before:
- Burch
The opinion of the court was delivered by
BURCH, J.:‘The purpose -of these appeals is to prоcure a review of a judgment of the district court rendеred as the result of proceedings directed to be taken by this court on a former *239appeal. (Epp v. Hinton, 91 Kan. 513, 919, 138 Pac. 576, 139 Pac. 376.)
The original opinion concluded as follows.:
“The cause will be remanded in order that the parties may offer evidence as to what the dry land would have been worth, if its ownership had carried a right to the use of water for its irrigation, the burden of proof being upon the plaintiff. If the decision is thаt it was worth $125 an acre, the original judgment will stand. If a different аmount is found, thefiudgment will be modified accordingly.” (p. 517.)
In a pеtition for a rehearing the defendants said they had offеred no evidence as to the value of the dry land bеcause they felt the plaintiff had not shown the value оf the land if it had been irrigable. In view of this fact the following order was made:
“The petition for a rehearing is denied, but it is directed that the district court, upon such evidencе as the parties shall offer, shall find the actual valuе of the land, and what its value would have been had it beеn irrigable, and render judgment for the difference.” (p. 919.)
At the sеcond trial the plaintiff offered evidence as to the value of the land assuming it to be without water for irrigatiоn. Seizing upon the words in the last order of this court “actuаl value of the land” the defendants offered evidence that the land was in fact watered by seepage to which a water right might be obtained. The plaintiff rebutted this еvidence and the court found for the plaintiff.
The defеndants say the plaintiff’s evidence was not responsivе to the issue, the actual value of the land. One of the issues at the first trial was whether or not the land was dry— without water for irrigation. That issue was determined in favor of the plaintiff, and it was not the purpose of this court to opеn it for further investigation. The only defect in the plaintiff’s former proof was as to the value of the land if ownershiр carried the right to use water for irrigation, and the first order limited the evidence to be taken at the secоnd trial to this subject. The defendants, however, had offered no evidence as to the value of the land as dry lаnd, and the first order was modified to permit the introduction of evidence on that subject. Witnesses might disagree as tо the actual value of this dry land. The adjudication, however, that the land was dry was not disturbed, as the language of the second order clearly *240indicated by drawing the distinctiоn-between actual value and value if irrigable, and the plaintiff had the right to take the opinions of witnesses as to the value of the land assuming it to be dry. The district court heard the evidence that the value of the land was inсreased by seepage and that it was not, and the finding in favor of the plaintiff is conclusive here.
Nothing else discussed in the briefs requires that, the judgment of the district court be reversed and it is affirmed.