1 Mont. 212 | Mont. | 1870
This was an action for damages for the diversion of water, and asking for a decree of title and perpetual injunction. Plaintiff alleged that he was the owner of certain mining ground and a water ditch, which conveyed two hundred inches of water to the same ; that he had a prior right to the water; that defendants wrongfully diverted the said water to plaintiff’s damage $500; that defendants threatened to continue the diversion, which would cause great and irreparable injury to plaintiff, and were unable to respond in damages.
Defendants answered and denied the ownership of the ditch, and prior rights to the use of the water ; denied that plaintiff had sustained damage in any sum; denied that diversion would cause irreparable injury. Further answered and set up title in the water by right of appropriation and agreement of defendants.
The case was tried at the November term, 1869, and the following verdict found for the plaintiff, viz. : “We, the jurors, do find the plaintiff entitled to one hundred and fifty inches of the water in Washington gulch.” The court on this verdict rendered judgment for costs against the defendants, and decreed the title to one hundred and fifty inches of water in the plaintiff, and perpetually enjoined the defendants from interfering therewith.
The defendants excepted to the entry of judgment and decree on the verdict, moved for a new trial, which motion was overruled, and appealed to this court.
Does the verdict or finding of the jury in this case support the judgment and decree % The jury find for the plaintiff upon the material issue of title to the water. There is
The defendants objected to the judgment for costs being entered because the plaintiff did not recover $50 or more damages. The gist of the action appears to be the title, or prior right to the use of the water; the diversion is admitted 'by defendants, but they deny the title to the water; upon this issue alone the cause was tried, and the plaintiff’s recovery of the water entitles him to costs.
Order of the court overruling motion for new trial is affirmed.
Exceptions overruled.