| Wyo. | Jan 30, 1902
This suit was for damages and for permanent injunction, by plaintiff in error against defendant in error, for alleged wrongful diversion of plaintiff’s water from his (plaintiff’s) ditch, resulting in injury to his growing crops in the season of 1900. The petition, after alleging ownership of ditch and appropriation of water, sets out certain procedure which if met, or in case error had been predicated thereon, would require the consideration and possibly the construction of our laws as to the appropriation of water, but as no issue was raised except by the allegations and a general denial, and the defense having been based upon a contract of sale, we do not deem it necessary to enter into the consideration of the allegations as to appropriation, which may or may not have qualified the allegation of ownership, and we have not done so.
While the above case was upon the question of non-suit, and the question here is the directing of a verdict, many errors here complained of were carefully considered in that case, and will not be again decided here. After issue had been joined by a general denial, a jury was empaneled and several witnesses for and on behalf of the plaintiff were sworn, one of whom, the plaintiff, Frank A. Mau, was examined. After testifying substantially in accordance with the allegations in his petition, as is claimed by plaintiff in error, this witness was given to the defense for cross-examination, and after answering certain questions was asked to identify a certain contract in writing, to which he answered that the signature thereto purporting to have been made by him was so made. This evidence was given over the objection of said plaintiff and an exception was taken to the ruling; then it was and while the witness of plaintiff was still being cross-examined that defendant asked that' the instrument referred to be admitted in evidence, which was done over the objection of plaintiff, to which ruling an exception was reserved. Then followed a redirect examination, a re-cross-examination and still another redirect examination, and said witness was apparently excused, for the time being at least, although the record shows that after the motion for a verdict was made “counsel on behalf of the plaintiff states that the testimony of Frank A. Mau is not yet all in.”
Counsel for defendant interposed the following: “Motion
“First — It conclusively appears from the testimony of the ■plaintiff himself and from the written agreement, which the plaintiff admits he signed and executed, that the ditch and right to use of the water flowing therein is the joint property of the plaintiff and the defendant. ■
“Second — It conclusively appears from the testimony of the plaintiff himself that he has never completed any appropriation of water from Smith’s Fork within the time limited by the State Engineer, and that more than two years have elapsed since the expiration of the time limited by the State Engineer for the completion of the appropriation of the water under the application of the plaintiff for an appropriation of water from Smith’s Fork.
“Third — And that this action cannot be maintained, the statute of the State of Wyoming, Section 908, and following, providing a specific remedy for the determination of the rights of joint owners in an irrigating ditch, and that said remedy as provided in the statute is the exclusive remedy.”
This motion was by the court sustained, and the jury were directed to and did return a verdict for defendant, to all of which the plaintiff in error objected and reserved an exception. Other irregularities and errors are claimed here and were, called to the attention of the trial court in the motion for a new trial and bill of exceptions of plaintiff in error, but sufficient has been set out for the purpose of review. The error claimed that the contract admitted in evidence should have been pleaded comes within the rule as stated in Riner v. New Hampshire Fire Ins. Co., 60 P., 262" court="Wyo." date_filed="1900-03-06" href="https://app.midpage.ai/document/riner-v-new-hampshire-fire-insurance-6587561?utm_source=webapp" opinion_id="6587561">60 Pacific, 262, and 64 P., 1062" court="Wyo." date_filed="1901-05-23" href="https://app.midpage.ai/document/riner-v-new-hampshire-fire-insurance-6587595?utm_source=webapp" opinion_id="6587595">64 Pacific, 1062, which as applied to this case would be, that where the allegation of ownership is material to the right of recovery under a general denial evidence to the contrary may be allowed. The more serious and as we find it a reversible error occurred in the direction
Admtiting for the purposes of this case that defendant might introduce and rely upon this contract without pleading it, still plaintiff would have the right, though admitting its execution, to prove that its terms had not been complied with by defendant; and he would have the right to do this by evidence in rebuttal. He is deprived of this right, and consequently of his right to a jury trial, by the peremptory instruction that was given. A verdict cannot be directed when there is any evidence tending to prove the plaintiff’s case. It must be submitted to the jury. As to Section 908, the very fundamental point which makes that section applicable, viz., that they are joint owners of the ditch, is denied by the party bringing the suit, and the court could not find that- it was a joint ownership until defendant had affirmatively shown that he had performed his part of the contract by enlarging the ditch.
Because of the errors herein pointed out, the judgment of the court below is reversed and the cause remanded.
Reversed.