| Idaho | Jul 1, 1903
This action was brought to recover $500 damages for an alleged wrongful destruction of certain dams alleged to have been situated in appellant’s irrigating ditch, by means 'of which appellant raised water out of his said ditch onto his land for irrigating purposes, and also for a perpetual injunction restraining respondent from interfering with said dams and ditches or the flow of the water therein. The defendants (-who are respondents here) answered and denied that appellant or his predecessors in interest constructed the water channel claimed by him as a ditch, and averred that the same is -one of the natural channels of Cassia creek, through which water has, from time beyond the memory of man, ever flowed, and that said channel was known as the north fork of Cassia creek; that said channel had been used by respondents and their predecessors in interest for more than twenty years to convey the water appropriated by them from Cassia creek to and upon their lands, and averred that the use 'of said channel by appellant has been in common with that of respondents, and denied that they had cut away and removed said dams or. that they threatened to remove the same.
This case was before this court on appeal, at its January, 1901, term, and the decision is reported in 7 Idaho, 490" court="Idaho" date_filed="1901-02-12" href="https://app.midpage.ai/document/parke-v-boulware-5168690?utm_source=webapp" opinion_id="5168690">7 Idaho, 490, 63 Pac. 1045. On that appeal the cause was remanded with instructions to grant a new trial. The new trial was granted and the respondents were permitted to amend their answer. Plaintiff waived his claim for damages. The eau.se was tried by the court without a jury. Judgment was entered for defendants, dissolving the temporary injunction and dismissing the case. A motion for a new trial was denied, and this appeal is from that order.
■ The first error assigned and presented in the brief of' counsel for appellant is the insufficiency of the evidence to sustain
That Cassia creek is a stream of water flowing through a certain portion of Cassia county, Idaho, and empties into Baft river in said county and state; that said Cassia creek divides into several branches or channels on its course toward said river, which division of the stream into such channels occurs above and up said stream from the lands of the parties to this action; that in high water the said stream flows through som¿ or all of the said channels; that the appellant owns certain farming land, a short distance down the stream from the point where one of these channels (being the one involved herein), and sometimes called north fork, sometimes called Cow creek, and sometimes having no name to designate it, finds its head; that to irrigate the said land the appellant and his predecessors have, for years past, maintained a dam in Cassia creek immediately below the junction of said so-called Cow creek channel with Cassia creek and a ditch about five rods long leading from Cassia creek above said dam to the said so-called Cow creek channel, by which means he has diverted the water at seasons when the same would not naturally flow therein into said Cow creek channel, and thence upon and across his said farming lands; that he has built several dams in said Cow creek channel for the purpose of flowing the water thus turned into said channel upon his said farming lands to irrigate the same; that the respondents are husband and wife and own certain lands down stream below appellant’s said lands which require irrigation, and also own certain water, or the right to the use thereof out of Cassia creek which they are entitled to> take for the irrigation of said lands; that to use said water for such purpose the respondents for a long time past used the same by means of diversion from Cassia creek which the appellant now uses, and used conjointly with the plaintiff and his grantors the said Cow creek channel as a means of conduit therefor; that both parties to this action have been decreed the right to the use of certain water from said creek; that several years
„ ' We;-have examined the evidence carefully, and while there ¡is a decided conflict in it, we think the findings of fact are- sus;
' As above stated, this case was before this court at its January, 1901, term, and the judgment of the lower court was reversed and the cause remanded for a new trial, and before a retrial was had the respondents were permitted to amend their answer over the objection of counsel for appellants, and that action of the court is assigned as error.
It is contended that it is too late after a ease has been remanded for a new trial to amend the pleadings, and in support of that contention counsel cite Palmer v. Utah etc. Ry. Co., 2 Idaho, 350 (382), 16 P. 553" court="Idaho" date_filed="1888-02-08" href="https://app.midpage.ai/document/palmer-v-utah--northern-railway-co-5167902?utm_source=webapp" opinion_id="5167902">16 Pac. 553.
In that case it was held that amendments to pleadings rest largely in the sound discretion of the court, and rulings thereon will not be disturbed on appeal unless it appears that such ruling has deprived the complaining party of some substantial right.
If a demurrer to a complaint or answer is overruled by the trial court, and on appeal it is determined that it should have been sustained, and the judgment is reversed .and remanded, we do not think it will be seriously contended, under our liberal statutes on amendments of pleadings, that the trial court has no power to allow an amendment, if the defeated party desires to amend. It is held by very respectable authority, how'ever, that after a case has been reversed on appeal and re.'manded for new trial, the defendant should not be aEowed to amend his answer so as to deny a material allegation of the complaint which had been admitted under the original verified answer. (Spanagel v. Reay et al., 47 Cal. 608" court="Cal." date_filed="1874-07-01" href="https://app.midpage.ai/document/spanagel-v-reay-5438287?utm_source=webapp" opinion_id="5438287">47 Cal. 608; Bliss on Code Pleading, sec. 430.)
The amendments complained of in no manner conflict with 'the denials or averments of the original answer. The provisions of section 4229, Eevised Statutes, in regard' to amend'ments are very liberal, and we conclude that after a case has been reversed on appeal and remanded for a new trial, the allowance. of amendments to the pleadings is in the sound discretion of the court, and that the court did not err in the case at
It is also contended that the decision in this case by this court on the former appeal is the law of the case, and that as it was there held that the ownership of a ditch may be separate from any water right, and that one may adopt as part of his ditch a depression, slough or high-water channel, and that his right to the possession and use thereof will be protected; the same as if such ditch were wholly artificial, and it is urged, that being true, there was nothing to retry on the second trial of this ease, for. the reason that the appellant alleges in his complaint that he and his grantors and predecessors in interest, have during all the time since 1879, had said ditch assessed against him, and had paid territorial, state and county taxes thereon, which allegation, it is contended, is not denied by the original or amended answer, and for that reason said allegation must be taken as true.
We are unable to agree with counsel in said contention. The denials and averments of the amended answer are sufficient to and do put in issue, said allegation.
In this court’s decision on the former appeal it was held that the evidence was insufficient to sustain the special verdict of the jury which was adopted by the trial court as its findings of fact But under the pleadings and evidence in the trial had after the cause was remanded, we think the court’s findings are sustained by the evidence, and that the evidence shows that the channel claimed by appellant as his ditch is one channel of Cassia creek, and that respondents have the right to run water through it. That conclusion, however, in no manner conflicts with the rule stated in that decision that the ownership of a ditch may be separate from any water right, and that one may adopt as part of his ditch a depression, slough or high-water channel, and have his right to the possession and use thereof protected the same as if such ditch had been wholly artificially ■made. But on the trial the court, in substance, found that respondents have the right to the use of certain water out of Cassia creek, and that they had for a long time past used con
The doctrine of stare decisis is not applicable to this case. We cannot regard that rule as showing any application to this case. That rule or doctrine grew out of the necessity for a uniform and settled rule of property and to form a definite basis for contracts and business transactions.
In our former opinion in this case, had we intended to hold that appellant was the absolute owner of said Cow creek channel, and that respondents had no right to run water through it, we would not have sent the case back for a new trial, but would have reversed the judgment in favor.of defendants and directed judgment in favor of plaintiff. Other errors are assigned which we have considered and find no reversible error in the record.
The judgment is affirmed and costs of this appeal are awarded to respondents.