63 P. 189 | Idaho | 1900
Lead Opinion
This action was commenced by the appellant, as plaintiff, in the district court of the fourth judicial district, in and for Blaine county, against the respondent James N. Hanrahan and seventeen others, as defendants, to settle the rights and priorities of all the parties to the use of the waters flowing in that certain stream, known as "Antelope creek.” The pleadings are very voluminous, eight of* the defendants answering separately and filing cross-complaints. The other defendants failed to appear. The cause was tried by the court, findings of fact made, and the decree of the court entered settling the rights of the parties and determining their priority, as follows: The plaintiff, Stickney, three hundred and twenty inches, his right dating from September 30, 1879. Defendant Warren, sixty inches, dating from September 30, 1879. The defendant Hoalst, one hundred and thirty inches, dating from September 30, 1879. The defendant Hanrahan, one hundred and' fifty inches, dating from October 15, 1893, to be of equal right and claim with the above-named plaintiff and above-named three defendants. The defendant Kinney, ninety inches, and the defendant Richardson, seventy inches, both dating from May 1, 1880. The defendant Green, one hundred and twenty-five inches, dating from November 15, 1883. The defendant Jenkins, eighty inches, dating from August, 1886. The defendant Taylor one hundred inches, dating from May 1, 1888. The said defendants moved for a new trial upon a
The respondents moved to strike from the transcript all' that part thereof, which includes exhibits used as evidence upon the trial, commencing at folio 401, on page 116, -and ending at folio 567, on page 163, for the reason that said exhibits were not incorporated into a bill of exceptions or statement on motion for a new trial, and therefore not a part -of the record upon appeal. This motion must be, and is, sustained. Upon appeal from a final judgment, such as the one appealed from in the case before us, there are only two ways of bringing the evidence before this court for review, viz., by incorporating the same into a bill of exceptions, or by incorporating the same into a statement of the ease on motion for a new triaL (See Rev. Stats., sees. 4441, 4443, 4818.) It must be kept in mind that this is an appeal from a judgment.
A number of assignments of error are made by both parties to this appeal,.- nearly all of them being based upon the insufficiency of the evidence. Inasmuch as the record before us, the so-called statement or bill of exceptions, shows that all of the evidence introduced upon the trial of the case is not contained in the record, we feel unauthorized, under established rules of practice and the statutes of this state, to disturb any of the findings of fact made by the lower court upon the ground that such findings are not supported by the evidence. A careful examination of what is designated in the record as “Statement -and Bill of Exceptions on Appeal from Final Judgment” convinces us that the appellant intended to incorporate into the same all of the evidence that he deemed necessary to be considered upon appeal. But he clearly failed to do so. No bill of exceptions was proposed or settled on behalf of the defendants. The decree was entered January 3, 1900. On January 5, 1900, the defendant Hanrahan, served notice of intention
In our view, the defendants have neither a bill of exceptions nor statement of the case within the purview of sections 4430, 4441, 4442, 4818, of the Revised Statutes; what is designated as the statement or bill of exceptions being in fact a narration
What has been said shows that this appeal, or rather, both appeals must be determined upon the judgment-roll. Both parties appeal from the judgment. Only one inquiry remains, for consideration: Do the pleadings support the judgment, and are the findings within the issues raised by the pleadings ?
The plaintiff (appellant in the original appeal) contends that the court erred in failing to find that he was entitled to two thousand five hundred inches of water appropriated by him in 1886 by notice posted at a point on one of his ditches. But, for the reasons hereinbefore given, we are not at liberty to-review the evidence upon that point. But, if we could do so, we would be compelled to hold that the action of the lower court was correct, under the evidence, for the reason that the plaintiff’s own testimony shows that, fourteen years after posting his notice, claiming his water for power purposes, he had not erected or put into operation the sawmill to run which he made the appropriation. He has not, .so far as this claim for water for power purposes, brought himself within the rule laid down by this court in Conant v. Jones, 3 Idaho, 606, 32 Pac. 250, and Mahoney v. Neiswanger, 6 Idaho, 750, 59 Pac. 561, as he has not proceeded with reasonable diligence. Plaintiff stated on the trial as follows: “I knew that for power purposes the water in Antelope was inadequate, and I went up and took out a river ditch.” It is agreed by all parties that the parties, hereto are located in proximity to Lost river.
The plaintiff complains that the findings of the trial court gave to the respondent Charles B. Hoalst a right to the waters, decreed, dating from September 30, 1879, equal in time with the right of the plaintiff, contrary to the pleadings. This contention is well grounded. In his cross-complaint said defendant Hoalst, for the fourth paragraph, alleges “that in the-
The learned counsel for the defendant Hanrahan, who is one of the appellants in the cross appeal, complains that the -decree in this case is imperfect, in that it does not specify the point at which the water decreed to the several parties should
These two errors — that one relating to the date of the water right of the defendant Hoalst, and the omission to designate the point of diversion as the place where said waters allotted the different parties shall be measured — are the only errors, in our opinion, shown by the judgment-roll. The cause is remanded to the district court, with instructions to modify its findings and decree in the two particulars hereinbefore designated, and the said judgment is in all other respects affirmed. The plaintiff (appellant) must bear the cost of printing that part of the transcript that has been stricken out. All the
Rehearing
ON REHEARING.
The appellant has filed a petition for rehearing, in which it is urged that the original opinion is inconsistent in some particulars. For instance, it is urged that the defendants Kinney and Richardson were, in the findings and decree of the lower court, given water rights dating from 1880, when in their respective pleadings they only claimed from the year 1887. Upon an inspection of the pleadings in this ease, we find that this contention' is correct. There was no complaint made at the hearing, orally, or in the printed briefs, that the findings as to the water rights of said defendants Kinney and Richardson were contrary to the pleadings; .hence our attention was not called specifically to that fact. And at this time we would not molest the former decision, were it not for the fact that the modification of the findings and decree ordered as to the defendant Hoalst, changing the priority of his right, make his subsequent in time to the defendants Kinney and Richardson, and thus work a hardship on him, by applying one rule to him, and refusing to apply it to the defendants Kinney and Richardson. .Both of said defendants Kinney and Richardson allege their appropriations to have been made in July, 1887. Hence, under the rule applied to defendant Hoalst, the findings and decree of the lower court must be modified so as to date their appropriations and rights thereunder from July 31, 1887, and it is so ordered.
' Appellant also complains that the place of measurement of the waters allotted to the respective parties has been designated as-'the point of diversion of such waters from the channel of the