202 P. 196 | Mont. | 1921
delivered the opinion of the court.
This suit was instituted to have determined the relative rights of the parties to the use of the waters of Nelson Creek— sometimes called Brock Creek — in Missoula county. The cause was tried first in 1915 and retried in 1918, resulting in a judgment in favor of the plaintiff, from which judgment and an order denying a new trial defendants appealed.
The second trial was had upon an amended complaint filed after the first trial, the answer thereto, and a cross-complaint by the defendants, and the plaintiff’s reply. In the amended complaint it is set forth, among other things, that in 1885 the plaintiff through his immediate predecessor, George W. Lish, appropriated two-thirds of the waters of Nelson Creek; that the predecessor of defendants, one August Gustine, about the same time made an appropriation of water from the same creek; that a controversy arose between these original appropriators respecting their rights, and, for the purpose of adjusting their differences, they entered into an agreement by the terms of which Gustine acknowledged the right of Lish to the use of two-thirds of the waters of Nelson Creek, and Lish acknowledged the right of Gustine to the use of one-third, each of the rights to be regarded as of even date; that thereafter and until about the time this action was commenced the agreement was recognized and carried into effect by the original appropriatofs and their respective successors in interest.
George W. Lish, a principal witness for the plaintiff at the
The reason for the rule which requires substantial identity of issues is apparent at once. If the issues presented on the former occasion were materially different, the cross-examination of the witness “would not have been directed to the same material points of investigation, and therefore could not have been an adequate test for exposing inaccuracies and falsehoods.” (2 “Wigmore on Evidence, sec. 1386.) “Conversely it is sufficient if the issue was the same or substantially so with reference to the likelihood of adequate cross-examination, because the opponent has thus already had the full benefit of the security intended by the law.” (Id., sec. 1387.)
The matter in dispute throughout this controversy — the issue to be determined — was the relative rights of the parties to the use of the waters of Nelson Creek. The amended complaint did not change the issue or introduce any new or different element. It did violate an elementary rule of pleading in that it incorporated a material portion of plaintiff’s evidence. If we assume the existence of the agreement between Lish and
The agreement was made in 1885 and reduced to writing in
Section 7872, Revised Codes, provides, among other things: “There can be no evidence of the contents of a writing other than the writing itself except in the following cases: Where the original has been lost or destroyed, in which case the proof of the loss or destruction must first be made,” and oral evidence may thereafter be given. It is insisted that there is not any proof of the loss or destruction of the original writing delivered to Gustine, and therefore secondary evidence was not admissible. The instrument was a private writing, the personal property of Gustine, and, in the absence of any showing to the contrary,’ we think it is a fair presumption that he took his copy with him when he returned to Sweden, and this sufficiently accounts for its nonproduetion.
Section 1855, Code of Civil Procedure of California, adopted in 1872, is identical in its provisions with section 7872, above, first adopted in Montana in 1895. In Zellerbach v. Allenberg, 99 Cal. 57, 33 Pac. 786, decided in 1893, the section of the California Code was construed. The court concluded: “A letter that is beyond the territory of the state is, within the meaning of - the statute, ‘lost,’ so as to allow secondary proof of its contents.” In support of its position the court cited Gordon
Again, it is insisted that the evidence relating to the
The record discloses that the measuring-box was placed in the stream and so constructed with a partition that one-third of the water was diverted into Gustine’s ditch, and two-thirds permitted to flow down to the Lish ditch; that this box was so constructed and placed by direction of Gustine; that Gustine and his successors observed that rule of division for about twenty-five years and until the present defendants succeeded to the Gustine interest.
The other assignments do not require special consideration. There is some conflict in the testimony, but it cannot be said that the evidence preponderates against the trial court’s findings.
The judgment and order are affirmed.
Affirmed.