72 P. 193 | Wyo. | 1903
Lead Opinion
The defendant in error, Frank A. Mau, recovered a judgment in the District Court in this action for the sum of two thousand dollars as damages for injuries alleged to have been sustained by him through the wrongful diversion of water from an imgating ditch by the plaintiff in error; and the latter was perpetually enjoined from thereafter taking or diverting such water.
By his petition in the action, defendant in error alleges that he is. the owner and in possession of certain lands consisting of three hundred and twenty acres, and in the year 1900 had growing on said land large and valuable crops of lucerne, native and tame grasses, oats, rutabagas, potatoes, garden stuff, small fruits and other products; that in 1893 he applied to the State Engineer for and obtained a permit to construct an irrigating ditch and to appropriate water from Smith’s Fork for the complete irrigation, reclamation and cultivation of all of said land; and that in pursuance thereof he constructed a certain irrigating ditch and appropriated the water of said Smith’s Fork, conduct
It is further alleged that on or about June 18, 1900, and ever since (the suit was commenced June 28, 1900), the defendant, John W. Stoner, without any right whatever, diverted all the water from said irrigating ditch and appropriated the same to his own use, and thereby deprived the plaintiff, defendant in error here, of the use thereof. On account of said alleged wrongful diversion it is averred that the various crops aforesaid were destroyed, the stock; of plaintiff had been deprived of water, and he was also deprived of the use and benefit of the water for domestic and other beneficial purposes; and his land had been permanently injured. The damages suffered by the lucerne, oats and other products, respectively, the injury to his .stock and. land, and the damage occasioned by reason of the absence of water for domestic purposes are specifically set forth; and the total damages sustained are alleged to amount to $7,150.
It is also alleged that the defendant threatened to continue the diversion, which, if carried out, will render the land wholly unfit for tillage or cultivation and cause plaintiff irreparable injury. The prayer is for damages and for an injunction restraining any further diversion of the water.
The answer consists of a general denial, except that plaintiff’s ownership and possession of the lands described in the petition are admitted.
In the motion for new trial, as well as in the petition in error, objection is taken to the denial by the court previous to the trial of a motion filed and submitted by the defendant
It is too well settled to admit of controversy that, under the code procedure, a party may ask and obtain several kinds of relief in the same action. (Phillips on Code Pl., 199, 210; Bliss on Code Pl., 171; Pomeroy’s Code Rem., 76-86; Getty v. Hudson R. R. Co., 6 How. Pr., 269; Akin v. Davis, 11 Kan., 580.) The authorities seem to be somewhat confusing and are possibly contradictory as to .whether in such cases there are two causes of action, or in reality but one cause of action upon which more than one kind of relief is sought. Phillips lays down the rule that the different kinds of relief do not constitute separate rights of action; that there is but one primary right, and one delict, and these afford but one right of action, requiring but one cause of action for its statement, however many ■kinds of relief may be had. (Phillips Code Pl., 210.) And Pomeroy states that there is in fact no joinder of different causes; but only the union of remedial, rights flowing from
There are cases doubtless where it would be quite proper, if not necessary, for the court to determine the equitable issues before the submission of the legal issues to a jury; such, for example, where a party seeks the reformation of an instrument and damages for its breach; the right to damages depending upon the reformation of the instrument. But it is not perceived in the case at bar that the right of the plaintiff to an injunction restraining a further diversion of the water constituted a condition precedent to his recovery of damages for the injuries already sustained. We think the court did not err in submitting the cause to a jury and in denying the motion referred to.
It is contended that the jury refused to follow the instructions of the court given at the request of the defendant be■low; that the verdict is contrary to the evidence; that cer
It appears that each of the parties to this action had a ditch taking water from Smith’s Fork, and that both ditches for some distance ran substantially parallel to each other. Prior to 1897 the plaintiff below had paid the defendant, Stoner, one hundred dollars for the privilege, as Mau testifies, of constructing his ditch through certain land, or, as Stoner testifies, for the privilege he sold Mau of connecting his ditch with the ditch owned by the former, and taking the water for his ditch -therefrom. It is immaterial which statement is correct. The particular water right secured by Stoner was not shown, nor does it seem to be material to the issues in this case. He testified that he had a recorded water right for his ditch. The plaintiff, Mau, introduced in evidence his applications for permits to construct his ditch and to appropriate water for three hundred and twenty acres of land, and their approval; and he testified that he commenced the construction of the ditch in 1893 and completed it in 1895.
John W. Stoner, the defendant below and plaintiff in error here, Aaron W. Stoner and Victor Forgeon were respectively owners of certain tracts of land lying above the land of the plaintiff, Mau, along the line of his ditch and between his land and the place where the ditch connected with the stream and received its supply of water. We understand from the testimony that John W. Stoner and Aaron Stoner, prior to 1897, had obtained water to irrigate their lands through the Stoner ditch.
In 1897 the parties hereto entered into a written contract, duly signed and acknowledged, and which was also recorded. That agreement is as follows:
*389 “This agreement made and entered into between Frank A. Mau of the County of Uinta and State of Wyoming, party of the first part, and John W. Stoner of the s.ame place, party of the second part, witnesseth:
“That, whereas the party of the first part is the owner of three hundred and twenty acres of land situate about two miles south of Cokeville, in said county, and Gustave Mau is the owner of one hundred and sixty acres of land adjoining the same;
“And, whereas, the party of the first part has constructed a water ditch from Spring Creek to said land and is now the owner of the same;
“And, whereas, the party of the second part is desirous to enlarge said ditch and extend the same;
“And, whereas, the following named parties own the following named number of acres of land upon the line of said ditch and the extension thereof, to-wit: John W. Stoner, 860 acres; Charles Deloney, 640 acres; Cyrus E. Wheeland, 360 acres, and Victor Forgeon, 40 acres; Aaron W. Stoner, 160 acres.
“Now, this indenture witnesseth: That, in consideration of one hundred dollars, the party of the first part agrees that the party of the second.part shall have the right to enlarge said ditch to a sufficient capacity to carry water sufficient to irrigate all of the above land and have the right to extend the same from its present terminus.
“And it is further agreed between the parties hereto that the -party of the second part shall have the right at any time before the 12th day of June, 1897, to shut off the water from said ditch for the space of ten days.
“That, after the said 12th day of June, 1897, the party of the second part shall furnish in ditch at least three cubic feet pf water to the party of the first part.
“The said party of the second part agrees to enlarge and extend said ditch, at his own expense (except that the first party agrees to furnish his services, with team, for fourteen days).
*390 “The party of the second part agrees to maintain and keep said ditch in repair for the term of one year after the completion of the enlargement thereof, and after the expiration of one year from the completion of the enlargement of said ditch each of the parties hereto agrees to bear his proportion of all necessary expenses in maintaining said ditch and keeping the same in repair in proportion to the amount of water used by them or their assigns.
“The party of the first part shall have the right at all times after the completion of the enlargement of said ditch to draw from said ditch through two opening or sluice gates, to be constructed by the party of the first part, five cubic feet of water.
“And it is agreed that, after the completion of the enlargement of said ditch, all of the ditch now owned by the party of the first part lying north of the juncture of said ditch with Stoner ditch and south of Spring Creek shall become the property of the party of the second part.
“And it is agreed that said ditch, when so enlarged, shall be the property of the parties hereto in proportion to the amount of water used by them or their assigns to its present terminus.
“It is further agreed that all water flowing in said ditch in excess of said five cubic feet shall be the property of the party of the second part.”
The contract refers to a ditch of Mau from Spring Creek. We understand this to be the same ditch he claims to have constructed from Smith’s Fork, and while the testimony is not as clear in explanation of the matter as it might have been, we are led to believe that the Spring- Creek named was used by Stoner as part of his ditch, and that the waters of Smith’s Fork were taken through a ditch into said Spring Creek, and then flowed immediately into the ditch built by Mau, or perhaps first into a part of the Stoner ditch branching off from Spring Creek and then into the Mau- ditch.
It appears that Smith’s Fork is a tributary of Bear River and flows in a westerly or southwesterly direction. Spring
The evidence discloses that, after the execution of the contract above set out, Stoner proceeded to enlarge the ditch, although it is contended that he did not in fact enlarge its capacity. At any rate he did some work upon it, a'nd made it larger, at least in .places, and in the progress of the work the two ditches — Stoner’s and Mau’s — were for a portion of the distance consolidated; a part of the ditch built by Mau being abandoned and the Stoner ditch used in place thereof. Whether the provision in the contract that, after the enlargement shall have been completed, all of the Mau ditch “lying north of the juncture of said ditch with Stoner ditch and south of Spring Creek shall become the property of the party of the second part,” refers to the abandoned portion of the Mau ditch, or a portion of. the enlarged ditch formerly used by Stoner, is not explained in the testimony with sufficient accuracy to afford us any very definite information. But we deem the matter of. very little importance, if any, in this case.
There is considerable testimony on the question of the enlargement of the ditch by Stoner. It was endeavored to be shown on the part of Mau that Stoner had not increased the capacity of the ditch; and there is some testimony to that effect. Stoner himself testified that Mau did not complain o.f the work done by him, except in respect to one point on the ditch. After the work was done by Stoner in 1897, it appears that the one ditch, or consolidated ditch, as it is called in some of the testimony, was used by both the parties and by Aaron Stoner and Victor Forgeon each season, and apparently with very little, if any, conflict until June, 1900.
According to.the testimony of Mau, he was engaged in 1900 in growing on his land the various crops already mentioned with the aid of irrigation by means of the ditch
The person employed at the time by Stoner to irrigate his land testified that he was taking out of the ditch twice as much water as Stoner’s land required; and that he did so under Stoner’s instructions; that the latter directed him to turn all the water he could, so that Mau would not get any, stating that he had been wanting a law suit with him and he was going to break him. He testified, however, that he let enough water go through to supply Aaron Stoner and Victor Forgeon. Another witness also testified to threats previously made by Stoner to prevent Mau from getting any of the water flowing in the ditch.
On the other hand, Stoner testified that he had made no threats; and that at the time in question two-thirds of the water was passing his place. There was also other testimony on behalf of Stoner to the effect that there was water in the ditch at Mau’s place when he complained of having none; but it is not clear that even the testimony produced by Stoner showed that the quantity of water to which Mau claimed to be entitled reached his land. It was also shown that at the same time both Aaron Stoner and Victor Forgeon were using water from the ditch. The defense attempted to discredit the testimony of the witness who took the water out of the ditch on Stoner’s land by showing that since then there had occurred some difficulty between him and Stoner. We do not propose to refer to all the
Considerable testimony was admitted in behalf of both parties concerning the work done by Stoner for the purpose of enlarging the ditch. It was. attempted to be shown by the plaintiff that Stoner had not in fact enlarged the ditch; and there is testimony that the capacity of the ditch was no greater in 1900 than it had been previous to the contract of 1897. The apparent object of the'-defendant was to establish that, in consequence of his enlárgement and extension of the ditch, he had acquired an interest in it as provided by the contract. We fail to understand the relevancy of a large part of the evidence bearing on that subject. Assuming that Stoner had enlarged the ditch to the full extent contemplated by him when he entered into the agreement of 1897, Mau would clearly be entitled to receive out of the ditch at all times five cubic feet of water; and Stoner conceded in his testimony that Mau was entitled to the first five cubic feet of water flowing in or conveyed by the ditch; and in our judgment the contract is to be so construed. This suit was not brought to determine the relative rights or interests of the parties in the ditch. That was a secondary consideration and- relevant only as affecting the rights of the parties to the water. It devolved upon the plaintiff to establish his right to the water alleged to have been diverted, and his right to have that water flow through
Whatever right or interest Stoner had in the ditch, he had no right to use or divert the water therein to which Mau was entitled, to the latter’s injury. The contract provides that when enlarged Mau “shall have the right at all times” to draw from said ditch through two openings or sluice gates five cubic feet of water; and that all the water flowing in said ditch “in excess of said five cubic feet” shall be the property of Stoner. Thus by the terms of the contract Stoner recognized the ownership and right of Mau to the first five cubic feet of water, and agreed that the water to which he shall be entitled as against Mau shall be the excess over and above such five cubic feet.
We do not think that the contract is to be construed as requiring Stoner to furnish and deliver to Mau the water to which he is entitled, but it does in effect require him to abstain from any willful act that may prevent that amount of water from flowing down the ditch to Mau’s land. Or perhaps it is more correct to say that, by reason of the facts, the law imposes that obligation upon him.
This brings us to a consideration of the instructions given to the jury. Before considering them, it will be necessary to dispose of a preliminary question affecting the record in respect to the instructions. The instructions given at the request of defendant are not embraced in the bill of exceptions, while those given at request of plaintiff are embodied in the bill. It is, therefore, urged that the instructions are not entitled to the consideration of this court. But all the instructions are returned with the original papers, and each instruction is numbered, noted as given and signed by the judge. This raises a question that we believe has not been directly decided by this court as to civil cases; although there may be found in some of the opinions expressions indicating that all instructions given or refused must be preserved by bill of exceptions to become part of the record. We have so held in criminal cases. (Van
Section 3644, Revised Statutes, prescribes the mode of jury trial in civil cases. It provides that before the argument of counsel is begun -the court shall give such instructions upon the law as may be necessary, which instructions shall be in writing and be numbered and signed by the judge. The seventh and last paragraph of the section reads as follows: “When either party asks special instructions to be given to the jury, the court shall either give such instructions as requested, or positively refuse to do so; or give the -instructions with modifications, and shall mark or endorse upon each instruction so offered in such manner that it shall distinctly appear what instructions were given in whole or in part, and in like manner those refused, so that either party may except to the instructions given or refused, or modified or to the modification. All instructions given by the court must be Med, together with those refused, as a part of the record
As the object of a bill of exceptions is.to bring into the record matters which otherwise will not constitute a part of the record, it seems to be unnecessary in civil cases for the purposes of review to embody the instructions in a bill when they are in writing, numbered, signed by the judge and so marked or endorsed as to show which were given, refused or modified, aiid filed as the law prescribes. The statute expressly requires them to be filed as a part of the record. (Blashfield on Inst, to Juries, 370.)
Objection is raised to the first instruction given at the request of plaintiff below on the ground that it introduced an issue not raised by the pleadings and upon which there was no testimony. It seems to us that counsel misconceives the nature of the instruction. It charges the jury in substance that an abandonment of the appropriation of water does not result from a change in the mode-of diversion, and the abandonment of the ditches by - which diversion was
The second instruction is objected to because it states that Mau had a right to five cubic feet of water per second of time in the ditch in question during the months of June and July, 1900. It is not pointed out in the brief why that statement is erroneous. The contract so provided; and Stoner
The fourth instruction given at the request of the plaintiff is objected to on the ground that it misconstrued the contract. That instruction was to the effect that unless the defendant, Stoner, had enlarged the ditch, known in 1897 as the Mau canal, to a sufficient capacity to irrigate 2,060 acres of land, over and above its then carrying capacity, he acquired no interest therein. By that instruction the contract was construed as requiring Stoner to enlarge the ditch to the full extent authorized under the contract before he could acquire any interest 'whatever in the ditch. It is evident that the instruction was given in view of certain other instructions given at the request of defendant to the effect that if the ditch had been enlarged, and the ditches of the parties had been consolidated, and water used therein by both parties thereafter, they would be joint owners of the ditch, and plaintiff could not recover in this action, the statute having provided another remedy.
'It seems to have been contended throughout the trial that if the parties were joint owners of- the ditch the sole remedy of plaintiff was an application for the appointment of some person to distribute the water flowing in the ditch to the various owners according to their respective interests, as provided under the provisions of Sections 908 to 914, inclusive, of the Revised Statutes; and two of the instructions given at the reqrtest of defendant below adopted that theory. This doubtless accounts for much of the testimony elicited upon the subject of the work of enlargement claimed to have been performed by Stoner under the contract; and
The theory that the plaintiff could npt recover in the action in the event that the defendant and himself were joint owners of the ditch cannot be sustained. As the plaintiff in error requested the instructions that were given to that effect, he cannot complain that they were erroneous. And as they were erroneous, it is immaterial that the jury disregarded them. It is argued that the evidence clearly shows a consolidation of the ditches of the plaintiff and defendant, and the joint use of water from the same ditch— the ditch in question — from 1897 to 1900, inclusive, and that under the instructions of the court those facts constituted the parties joint owners of the ditch; and hence, under such instructions, the plaintiff was not entitled to a verdict, as they were instructed, the plaintiff in such case could not recover. It is evident, however, that the court did not regard the evidence as clearly showing joint ownership, in view of the court’s construction of the agreement of 1897. For the jury were also informed that defendant acquired no interest whatever unless his enlargement of the ditch had been sufficient to irrigate the entire 2,060 acres of land which the contract permitted him to do. Hence, on the question of joint ownership, it was left to the jury to determine whether or not the enlargement had been such as to give the defendant an interest in the ditch, and hence sufficient to constitute them joint owners. It is possible that the fourth instruction given at plaintiff’s request, construing the contract as requiring the enlargement to the full capacity permitted by the contract as a condition precedent to the acquirement of any interest on the part of defendant, is inconsistent with the instruction given at the request of defendant, to the effect that a consolidation of the former ditches of the parties and the use of water from the consolidated ditch in common by both parties thereafter, would render them joint owners of the ditch. But, if so, we think such inconsistency immaterial in view of the sole issues involved in the case.
However, assuming that Stoner had enlarged the ditch to the fullest extent permissible under the contract, and that he and Mau were joint owners in the ditch, that circumstance would not prevent a recovery by Mau in this action. The instructions in that respect’were doubtless based upon the provisions already alluded to concerning the distribution of the water in an irrigating ditch jointly owned by two or more persons. (R. S., Secs. 908-914.) We are not aware of any other statutoiy remedy that could have been intended; and that statute does not provide a remedy for the injuries alleged to have been suffered by plaintiff, nor does it afford the relief to which he was entitled upon the facts alleged. That statute provides in substance that whenever two or more joint owners in an irrigating ditch are unable to agree relative to the division or distribution of water received through such ditch, any such owner or owners, or either of them, may apply to the District Court by a verified petition, asking for an order appointing some suitable person to take charge of the ditch for the purpose of making a. just distribution of the water to the several persons entitled to the waters received through the ditch. A summons is required to be issued upon the filing of such petition, and a hearing is authorized before the court, the judge in chambers or the Distinct Court Commissioner; and it is provided that the decision shall be final. The order authorized to be made by the court, judge or commissioner is one appointing some suitable person, not personally interested in the ditch, to divide and distribute the water of the ditch as in his judgment justice may require,
We do not think 'the statute is intended as a substitute for an action for damages, or injunction. It certainly provides no means whereby one who has suffered injury through the wrongful diversion of water by another may recover damages for that injury. And, although it may be true that by pursuing the remedy provided by the statute an injunction might be rendered unnecessary to prevent a continuance of the wrong and resulting injury, we cannot regard the statute as depriving the courts of their equitable jurisdiction in such cases. There is nothing in the statute referred to indicating that it was adopted as an exclusive remedy in cases of disagreement among joint ditch owners.
The instruction to the effect that in case the jury found the parties to be joint owners of the ditch the plaintiff could not recover in the action being erroneous, we would hardly feel justified in reversing the judgment on the ground that the instruction was disregarded.
It is unnecessary to decide in this case whether or not the fourth instruction given at request of plaintiff embraces an erroneous interpretation of the contract. Conceding the instruction to be erroneous, it could not have operated pre-judicially to the plaintiff in error. Notwithstanding the fourth instruction, the jury were informed by the third instruction requested by plaintiff that, even though they should find that Stoner did so enlarge the ditch, the plaintiff was entitled to the first five cubic feet of water flowing in the ditch, and that was a correct statement of the law under the contract and the evidence. Conceding that Stoner had acquired an interest in the ditch, he was clearly without right to divert to Mau’s injury the first five cubic feet of water flowing therein. If he wrongfully diverted that water and Mau suffered damage thereby, it is no defense in this action that Stoner is a joint owner of the ditch.
The issue presented for determination in this action was not primarily the ownership of the ditch. Evidence upon that matter was no doubt admissible as tending to show the right of the plaintiff in error, Stoner, to divert any of the water conveyed through, the ditch. The questions at issue were whether plaintiff in error had tortiously diverted water from the ditch to which Mau was entitled, to his injury and damage, and had threatened to continue such acts under such circumstances as would render it proper and equitable to restrain the same.
We are unable to perceive any prejudicial or reversible error in the record, and the judgment will be affirmed.
Affirmed.
Rehearing
ON PETITION FOR REPIEARING.
On the former hearing the judgment of the District Court in this cause having been affirmed, plaintiff in error applies for a rehearing; and the chief ground asserted in sup
There was evidence tending to show that defendant in error did not receive the water to which he was clearly entitled under the contract, and that his failure to receive it was caused by its diversion by plaintiff in error. We think it evident that the verdict was not based upon the diversion by plaintiff in error of the water in the ditch over and above
It seemed to us, therefore, and we adhere to that opinion, that it was immaterial to any issue in the case whether plaintiff in error was entitled to divert any water flowing in the ditch over and above the first five cubic feet. Hence, it was considered unnecessary to consider the correctness of the fourth instruction for defendant in error, interpreting the contract as aforesaid. Conceding: its incorrectness, plaintiff in error was not prejudiced thereby. We referred to it then, however, to show that, in view of its statements, the jury may have found that the ditch had not been enlarged, and that the ditches of the parties had not in fact been consolidated; and that, in the event the jury so found, there may not have been a disregard on the part of the jury, as they understood it, and as we think the court intended it to be understood, of the instruction given at request of plaintiff in error above referred to.
It was not intended in our former opinion to hold that the jury clearly disregarded any of the instructions. But in view of the peculiar character of the instruction under consideration, we expressed the opinion that, conceding it to have.been disregarded, that fact would be' deemed immaterial and not justify a reversal of the judgment. Possibly our language was broader than was necessary and may be construed as holding that a disregard by the jury under any circumstances of an erroneous instruction is immaterial, where the verdict is right upon the law of the case. Manifestly, it was not required that we go to that extent.
There is a direct conflict in the authorities on that prop
The courts of several other states, on the other hand, announce and apply a contrary-doctrine. (Id. note and cases cited.) And it is maintained by much respectable authority that where a verdict is clearly right upon the evidence, and the whole law of the case, a verdict will not be set aside on the ground that it is in conflict with an erroneous instruction.
In Hammill Fire Escape Co. v. Davis, 64 Ill. App., it was said that a part of the verdict seemed to have been contrary to the instruction of the court as to the sufficiency of proof, but if the court, on motion for a new trial, was convinced that the jury took a more correct view, the motion for hew trial was properly denied. In Georgia, where the trial court had erroneously instructed the jury on the subject of the bar of the statute of limitations, the Supreme Court, after stating the correct rule, said: “And the charge of the court to the contrary was, itself, wrong; and, if wrong, it was no error in the jury not to follow it. Their finding contrary to this charge, then, is not a ground for a new trial. On the motion for the new trial the court, itself, became conscious of its error, and admitted it.” (Brock v. Garrett, 16 Ga., 487.)
In Missouri it is held that if, upon the pleadings and undisputed facts, the judgment is for the right party, there can be no reversal, no matter what errors intervened upon the trial, and the court in one case said: “Then, upon the same principle, if the judgment is for the right party upon the undisputed or admitted facts in the trial court, that court should not disturb the verdict and judgment thereon,
A very full and able discussion of the matter by a court holding that, whether an instruction be right or wrong, a verdict that disregards it should'be vacated, is to be found in Murray v. Heinze, 17 Mont., 353. In that case it is stated that the instructions under consideration affected the vital issues of fact in the case; and as it was the law of the case, as far as the jury were concerned, they had no right to disregard it, and their verdict contrary thereto was “against law,” notwithstanding that the instruction may have been erroneous; and the action of the trial court in settjng aside the verdict was held to have been justified.
There can be no doubt but that-the jury is bound to take the law from the court; and that they have no right to determine the law for themselves adversely to the instructions of the court. This may be conceded to the fullest extent, yet should it necessarily follow that in all cases, and under all circumstances, a new trial ought fo be granted where the duty of the jury in that respect may seem to have been violated.? We are not prepared to say, nor do we conceive it necessary in the present instance to decide, that cases may not arise where a judgment shoitld be reversed on the sole ground that it is based upon a verdict rendered contrary to the instructions of the court, even though such instructions may have been erroneous.
An examination of the authorities will disclose that they are to be distinguished from the case at bar. In Nebraska, where a judgment was reversed because the verdict clearly violated the positive instruction of the court, the instruction was that there could be no recovery in the case, upon the evidence, for more than nominal damages; but a verdict was returned for $35 damages. (Aultman v. Reams, 9 Neb., 487.)
In the case of the Charles Baumback Co. v. Gessler, 79
In the leading California case, it was contended that the jury, in rendering a verdict for only $600, utterly disregarded the instructions of the court, as applied to the facts admitted by the pleadings and the evidence in the case. (Emerson v. County of Santa Clara, 40 Cal., 543.)
The leading case in Iowa, and possibly on this subject, is Savery v. Busick, 11 Ia., 487. In that case the trial court charged the jury, practically, that they should find for the defendant. Notwithstanding such instruction, a verdict was returned for the plaintiff; and a new trial was granted by the trial court. The order granting the new trial was appealed from. The court refused to review the case until triad upon the law as expounded by the court, and said: “Whatever may be our view of the law of this case, it is impossible for us to express it, or consider the questions presented, without going behind the action of the jury in trampling upon the authority of the court, and thereby giving some countenance to their assumption. This we are unwilling to do, even by the slightest implication.” It is to be observed that the instruction in the case held that, under the law, there was no liability on the part of the defendant. In Scott v. Morse, 54 Ia., 732, however, it was held that, on the ground that the verdict is opposed to the evidence and instructions, the appellate court will not reverse an order denying a motion for new trial, where the evidence and instructions are not pertinent to any issue made in the case.
Now, in the case at bar, the instruction did not affect the liability of plaintiff in error for the injury complained of
As this was not a correct statement of the law, for the reason that another remedy had not been provided by statute, and as the jury upon what we have deemed sufficient evidence found the facts favorable to defendant in error that entitled him to recover, it is not clear to us that the judgment ought to be reversed upon the ground that the instruction may have been disregarded.
It must be understood, however, that we did not intend to base our conclusion in the case upon the principle that the verdict would not be disturbed for violating the instruction which we deemed to be erroneous. Indeed, it is not clear that it was disregarded. There was some evidence to the effect that the capacity of the ditch was not increased at all by the work done on it by plaintiff in error. We stated in the former opinion that the evidence seems to us to show a consolidation of the ditches of the parties, but we also referred to the presence of testimony denying the enlargement of the capacity of the ditch, independent of' the fourth instruction. There was a conflict on this matter, and if ¿t all material, it was for the jury to determine. Assuredly it will not be contended that the ditch had been enlarged if it would not carry any greater quantity of water than before.
In the instruction now being considered, one of the facts mentioned as necessary to a finding that the parties were joint owners was that the ditch had been enlarged. In view of the conflict in the evidence as to the practical result of the work done on the ditch by plaintiff in error, it may be that the jury found upon the fact of enlargement against the claims of plaintiff in error, and in that view of the case
Counsel seem to think that this court admitted an incon-sistencjr in the instructions in this respect. But an examination of óur opinion will show that we merely stated that it may be possible that plaintiff’s fourth instruction was inconsistent with a portion of the defendant’s instruction referred to. We said that, if so, the inconsistency was not material, in view of the sole issues in the case; and that seems to us to be a correct view of the matter. Counsel, and possibly our language in ¿the former opinion may have warranted it, lose sight of that part of the instruction requested by plaintiff in error, which made the fact of enlargement a condition of joint ownership; and of the evidence that was given upon the theory that the ditch in some places was not made larger, and for that reason it would not carry any more water than b.efore the alleged enlargement. We express no opinion as to the weight to be given that testimony, since that is a matter that was properly-left to the jury to determine. We are inclined to regard it as immaterial, but allowing it to be considered did not injure plaintiff in-error, since his case was presented on the theory that he had enlarged the ditch, and thereby had become an owner in the ditch; and that such' fact constituted a sufficient defense.
It is stated by counsel that the court evidently adopted as true the testimony of the irrigator employed by plaintiff in'error; and that under his testimony it appeared that enough water was allowed to pass the premises of plaintiff in error to furnish defendant in error all that he was entitled to. This court did not accept as true or disregard as" false the testimony of any witness. The testimony was conflicting, and it was the province of the jury to consider and weigh it. We merely held that there was sufficient evidence to sustain the verdict of the jury.
We do not think a rehearing can subserve any useful purpose, and it will be denied.
Corn, C. J., and Knight, J., concur.