Stocker v. Kirtley

59 P. 891 | Idaho | 1900

SULLIVAN, J.

— This is an action to enjoin the defendant (who is appellant here) from running placer mining debris, consisting of rock, sand, gravel, and sediment, into plaintiff’s irrigating ditch and upon his land, and for damages. The complaint specifically prays for $400 damages for a perpetual injunction, and “for such other proper and equitable relief as to the court shall seem meet, and for costs of suit.” Among other allegations, the complaint alleges ownership in the plaintiff of a certain water right, consisting of one hundred and forty inches,, of the water of hartley creek, but no specific prayer for a decree to that effect is contained in the complaint. The answer contains a denial of the material allegations of the complaint, and* as a separate defense, sets up title, acquired by adverse user, to all of the water of said creek. When the cause came on for trial, counsel for appellant demanded that the issue made as to-damages be first tried by a jury, which demand the court denied* and proceeded to try the issues as to the respondent’s right to a perpetual injunction, and as to the amount and priority of his water right, upon which issues the court made its findings of fact and conclusions of law, and entered judgment and decree in favor of the respondent, perpetually enjoining the appellant* and decreeing the priority of his water right to the extent of one hundred and forty miner’s inches. The issue for damages was continued for the term, and a motion for a new trial denied. This appeal is from the judgment, and an order denying the motion for a new trial.

We shall, in limine, advert to the manner in which this case was tried. The complaint states but one cause of action, and the claim for damages is incidental to that. The court should have tried the equitable part of this action, and thereafter, if a jury was demanded to try the issue of damages, submitted that question to a jury. After verdict, the court ought to have made its findings of fact and conclusions of law, and entered judgment accordingly. Such actions as this must not be tried piecemeal, and several judgments entered; that is, the material issues must all be tried and found upon before judgment is entered, else one material issue might be tried, and judgment entered thereon, and the other issues postponed.until a subsequent term of court, and then another issue or cause of action tried* and judgment entered thereon, and other causes of action, if any are pleaded, continued to a subsequent term, and so on to the end. This procedure would of necessity require repeated appeals in the same action, when, if all of the material issues were tried before judgment was entered, but one would be needed. Our practice acts do not contemplate that actions shall be tried in that way.

The admission in evidence of the judgment-roll in the case of Boyle et al. against MeGarvey et al. is assigned as error. The appellant was not a party or privy to that suit, and it is elementary that a judgment can have no binding force upon one not a party or privy to the action in which such judgment is rendered. (2 Black on Judgments, sec. 600.) Counsel for respondent contend that said judgment-roll was introduced for the purpose of corroborating the evidence of respondent as to the date from whence his water right began, and was proper for that purpose. The date of the location and appropriation of said water was a fact to be proved by respondent, and he produced on the trial his grantor and predecessor in interest, who testified that he cultivated and irrigated twenty-five acres of respondent’s said land in 1873, and increased the acreage in cultivation f.-om year to year thereafter until 1894, when he sold said land to plaintiff. That witness could have testified as to the amount of water he used on said land, and appropriated for the use thereon, and that would be the best evidence of the date of such appropriation. The court erred in admitting said judgment-roll.

The fourth and fifth findings of fact are assigned as error, which findings are to the effect that plaintiff and his predecessors in interest appropriated one hundred and forty inches of the waters of Kirtley creek, and he is entitled to the continuous flow of said water, and. has superior right thereto. We have not found sufficient evidence in the record to support said findings, and apparently the trial court based said findings on said judgment-roll. If plaintiff and his predecessors in interest located and appropriated one hundred and forty miner’s inches of the water of said creek, and applied the same to a beneficial use upon his said land, he can show that fact by competent evidence. It cannot be shown by the judgment-roll in an action to which appellant was not a party or privy.

The refusal of the court to admit in evidence the deed from James L. Kirtley and wife to the Michigan Gold Mining Company is assigned as error. Said deed purports to convey certain placer mining ground, situated on Kirtley creek, extending about three miles along said creek, and all ditches, water rights etc., used in connection with, and appertaining to, said placer claims. The appellant in his answer avers a right to the prior use of all of the waters of said creek acquired by adverse user, but he nowhere avers that he acquired such right by prior location and appropration, and we are unable to see wherein or how said deed can be relevant to any issue made by the pleadings. Appellant avers that he and his predecessors in interest have used all of the waters of said creek for the ten years last past, and bases his right on adverse user. Said deed bears date June 9, 3887' — about twelve years prior to the filing of the answer. There was no error in excluding it.

The primary object of this action was to restrain appellant from filling respondent’s ditch with placer mining debris, from running the same on his land, and for damages. Those are the only reliefs specifically prayed for. But since an answer has been filed, and respondent’s prior and superior right to one hundred and forty inches of the water of said creek is alleged in the complaint, under the prayer for general relief, the court may settle that issue. Section 4353 of the Bevised Statutes provides that, in a case where an answer is filed, the court may grant any relief consistent with the case made by the complaint, and embraced within the issue. However, in this case it is not essential to the recovery of the specific relief prayed for that respondent establish the allegations of his complaint as to his prior and superior right to any of the waters of said creek, as one may own a ditch, or a ditch and land, independent of a water right, and may protect them from injury. The judgment of the court below is reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion. Each party must pay one-half of the costs of this appeal.

Huston, C. J., concurs. Quarles, J., did not sit at the hearing of this case, and took no part in the decision thereof.