133 P. 910 | Idaho | 1913
Lead Opinion
The respondent moved to dismiss the appeal in this case upon the following grounds: “ (1) Because the reporter’s transcript was not completed and lodged within the time prescribed by subd. 1 of sec. 4434, added to the Revised Codes by Laws of 1911, page 379, an express mandatory statute; (2) Because the trial court purported to grant an extension of time in contravention of Rule 77, and appellant wholly failed to complete his transcript within the time allowed by that rule; (3) Because the trial judge had no jurisdiction to settle the transcript under the facts of this case; and (4) Because the transcript on appeal was not filed within sixty days from the perfecting of the appeal, and no extension of time was asked for or obtained.”
It appears that the judgment was entered in this case on the 4th day of April, 1912, and the appeal was perfected on the first day of June, 1912, by filing notice and an undertaking on appeal. On the same day, that is, June 1, 1912, the district judge made and filed an order allowing forty days for. the preparation of the reporter’s transcript of the evidence. Thereafter, and on July 9, 1912, the judge signed an order granting an additional period of forty days for the preparation of the reporter’s transcript. This latter order was made on the application of counsel for appellant and the order was made without serving or filing any affidavit or showing as required and provided for in Rule 77 of the rules of this court. The latter order gave the reporter until the
This motion involves a construction of sec. 4434 of the Rev. Codes, as amended by chapter 119 of the Session Laws of 1911 (1911 Scss. Laws, p. 379) and Rule 77 of this court. It is conceded in the outset that there was no compliance with Rule 77. That rule provides as follows:
Rule 77: “In no case shall the time granted for the preparation of the transcript of the reporter’s notes, under the provisions of sec. 4434, as enacted by the 1911 Session of the legislature, exceed forty days, including any and all extensions granted for the purposes therein specified; Provided, That in extraordinary eases, or in case of an unusually large record, or in case of sickness of the reporter, a party desiring an extension of time, may,, upon filing affidavits showing the cause for the same and serving the same on the adverse party and giving notice of the time and place of hearing, which shall be not less than two days, and upon such hearing and good cause appearing, be granted an extension or extensions, not exceeding in the whole an additional forty days.”
In the last analysis, this motion rests on the validity and authority of the foregoing rule adopted by this court, and •whether or not that rule is in harmony with the statute and is binding and operative. The appellant complied with the first part of the rule, in that he procured an order directing the reporter to prepare the transcript and fixing the time for that purpose, not exceeding forty days. There was, however, no attempt to comply with the proviso to that rule, namely, that additional, extensions should not exceed forty days, and that these additional extensions beyond the first forty days should be made upon affidavit and notice. The statute, subd.
It will be seen that the appellant must file a praecipe for the record and transcript or such part thereof as he may desire, and pay the fees demanded. If he desires the reporter’s notes extended, he must “procure from the district judge an order directing the reporter to prepare such transcript or specified portion thereof, which order shall limit the time within which the reporter shall complete and lodge the same.” The statute makes no further requirement of the appellant or his attorney until after he has been furnished with the copies of the transcript. He must then within five days specify and designate any errors or omissions and corrections necessary to be made and serve a copy on the adverse party or his attorney. The statute does not impose any duty upon the appellant or his attorney in the matter of procuring further extensions of time within which the reporter may complete the transcript of his notes. The matter seems to rest in the hands of the district judge, and it would appear to be the duty of the reporter to make the application himself directly to the district judge or to notify the attorney for appellant and request him to make the necessary application and give him the information on which to base such application. If, however, the reporter fails to notify the attorney for appellant that he will not be able to complete the transcript within the time originally allowed, there is no way for the appellant or his counsel to know that it will not be com
In the case at bar, it appears that counsel for appellant did everything required to be done by him, and that he was diligent and was constantly after the reporter, urging him to get his work out. It does not appear that the work could have been completed sooner without delaying other work which was equally entitled to attention and consideration. The reporter should have procured an order giving him an extension of time necessary to complete this transcript-. The failure, however, to do so should not be visited upon the appellant in a case where he shows that he was diligent and continually urging the completion of his work. (Smith v. Jaccard, 20 Cal. App. 280, 128 Pac. 1023.) The only remedy an appellant has where the reporter fails to get a transcript out in due time is to apply to the district judge for an order or writ of mandate. This might be done merely by motion, as the matter is pending before the court and the reporter is a court officer.
It follows from what has already been said that Rule 77 of this court is directory and advisory only, and not mandatory, and that an appeal cannot be, and will not be, in every instance, dismissed for a failure to comply with this rule. In other words, a failure to observe the requirements of Rule 77 with reference to extension of time for preparing reporter’s transcript and the showing that should be made before granting such extensions can only become a cause or ground for dismissing an appeal in cases where the appellant or his counsel has neglected some duty imposed upon him, or has
"What has already been said is applicable to the contention made by respondent that the transcript was not filed in this court within sixty days after the appeal was perfected as required by Rules 23 and 25 of this court. Under the amended statutes as above cited, the appellant is no longer chargeable wdth the duty of filing the record in this court. That duty has been transferred to the clerk of the district court (subd. 3 of sec. 4820a, 1911 Sess. Laws, 375), and the necessary fees for that purpose are paid by appellant to the clerk of the district court at the time he files his praecipe for the transcript. (Subd. 1, sec. 4820a, 1911 Sess. Laws, 375.) A failure on the part of the clerk of the district court to discharge this duty with diligence and dispatch may be reached by the appellant on application either to the judge of the district court or to this court. If, however, the judge of the district court grants extensions of time for the reporter to get out his transcript beyond the sixty-day period, it will be impossible for the clerk to.send the transcript to this court within that time. We think, however, that the proviso found in Rule 25 of this court, “That the time during which the trial court, or judge thereof, may hold a bill of exceptions,
For the foregoing reasons, the motion to dismiss the appeal is denied.
This brings us to a consideration of the case on its merits. The action was brought to procure an injunction restraining the defendants from maintaining a cribbing or obstruction in the Boise river. A temporary injunction was issued and an appeal was taken to this court, and the judgment of the lower court was affirmed. (Fischer v. Davis, 19 Ida. 493, 116 Pac. 412.) The case was subsequently tried on the merits and this appeal is from the judgment. The plaintiffs and defendants are opposite riparian proprietors along the Boise river. The defendants filed a cross-complaint charging the plaintiff with maintaining an obstruction along the stream on his side, which they alleged caused an unusual volume of water to flow across and on to the defendant’s lands, and erode and wash away'the land and do great damage to the defendants as riparian proprietors. The court heard the case and denied any relief to either party, holding that neither obstruction was a damage or injury to the opposite land 'owner. The material findings made by the trial court are Nos. 4, 5, 6 and 7, and are as follows:
“4. That the said defendants in the spring of 1910 constructed a certain cribbing'on the westerly side of such river at a point opposite the southerly end of a certain gravel bar situate in such river, for the purpose of protecting the said lands of defendants from erosion and being washed away during high water period in such river. That said river at*229 the point of said cribbing is about 362 feet wide; that said cribbing extends into the channel of said river a distance of about 74 feet, and at an angle of about 45 degrees to said channel.
“5. That the construction and maintenance of such cribbing does not and will not injure the lands of plaintiff.
“6. That during the years 1908 and 1909 the plaintiff constructed on the lands of plaintiff an embankment adjacent to such river and along the easterly side thereof for the purpose of protecting the said lands of plaintiff from erosion and being washed away during high-water periods in such river.
“7. That the erection and maintenance of such embankment by plaintiff does not and will not injure the lands of the said defendants.”
It is well settled, as a general rule, that “A riparian owner of lands abutting upon a stream has no right to place obstructions out into the stream for the purpose of changing the natural course of the river, or for any other purpose that would do damage to a riparian owner on the opposite side, or to owners of land abutting upon said stream, either above or below.” (Fischer v. Davis, 19 Ida. 493, 116 Pac. 412.) This is particularly true with reference to streams that have well-defined banks and a permanent channel of bed. The Boise river, however, is not such a stream. While it carries a considerable volume of water, especially during the high-water season, still it is a vagrant stream with low banks where it traverses the valley and is constantly changing its channel in flowing through and over a sandy and gravelly formation. This stream was meandered when the government survey of public lands was made, and yet it appears that in many places no part of the stream is now within the boundary lines of the river as meandered at the time of the survey. In some instances, it is as much as a half mile away. In order for those who are using their land along the stream to be able to improve the same with any assurance of obtaining results or any degree of safety, it is necessary to protect the banks from erosion either by means of cribbing, rip-rap, or stock
Another thing which the court will take into consideration in entering judgments with reference to this stream is that large reservoirs have been constructed by the government reclamation service for impounding water from this stream during the high-water season, and that another large reservoir is being constructed some 23 miles above Boise City, which it is estimated will collect the entire surplus flow of the Boise river during the high-water period. When these projects are completed, there will no longer be any particularly high-water season.in the Boise river below the points of diversion, and for that reason it would hardly seem necessary for a court to cause these eribbings, embankments and stockades to be removed which are so placed that they do not cause damage to other riparian proprietors and where they will not in all probability cause injury or damage in the future.
As said by this court on rehearing in Fischer v. Davis, supra, “A court of equity should never permit such a thing to be done where there is a showing that in all reasonable probability it will result in ‘great or irreparable injury’ to someone else.”
Upon the whole record in this case, we are satisfied the appellant is not entitled to the injunctive relief sought and
Rehearing
ON PETITION EOR REHEARING.
A petition for a rehearing has been filed in this ease, in which counsel discuss the main proposition considered and disposed of in the original opinion.
We find no reason to change or alter the views heretofore expressed by the court upon these questions. Our attention, however, has been called to one matter which should have been considered by the original opinion and which was evidently overlooked. The appellant brought to the attention of this court the action of the trial court in denying and overruling his motion to retax the costs in the case, and appellant has assigned that action of the'court as erroneous. The appellant commenced his action against respondents to procure an injunction restraining respondents from maintaining a cribbing or breakwater in the river. Respondents answered, traversing the principal allegations of the complaint, and also filed a cross-complaint alleging that appellant was maintaining an obstruction on his side of the stream which was causing damage to the defendants, and prayed for an injunction restraining the plaintiff from continuing to maintain this obstruction, and also alleged that defendants had sustained $11,000 damages and prayed judgment against him for that sum. All these questions were tried, and the trial court, after hearing all the evidence, concluded that neither party was injured nor damaged by the other, and that neither could recover damage from the other nor have an injunction. Notwithstanding this conclusion, the trial court taxed all the costs of the case up against the plaintiff, who is appellant here. This, we are satisfied, was erroneous. Under the facts
We think the fair construction of secs. 4901 and 4903, Rev. Codes, requires the taxing of costs incurred by each party up against the party who incurred such costs in a ease like the one under consideration. We do not understand either Bemmerly v. Smith, 136 Cal. 5, 68 Pac. 97, or Abram v. Stuart, 96 Cal. 235, 31 Pac. 44, as opposed to this construction and holding.
Counsel has also suggested that the appellant should have the right to maintain an action against respondents for the purpose of recovering compensation for any damages incurred since the trial of this case by reason of the erection and maintenance of the cribbing which was the subject of appellant’s action in this ease. That question is not involved in this ease, and of course cannot properly be discussed or considered.
It would seem clear, however, that the judgment' in this action is no bar to the appellant’s right of action against respondents for any damage which he may have sustained since the trial of the present case if he is able to establish that he has sustained damages. We conclude, therefore, that the judgment in this case must be modified to the extent above suggested. The cause will therefore be remanded to the district court, with direction to tax the costs incurred by each party against the party who incurred the same, and if any item of costs has been incurred alike by both parties, that such expenditure be divided equally between the parties.
Costs of this appeal will be equally divided between appellant and respondents.
