2 Mont. 405 | Mont. | 1876
The facts presented to ns in this case, as we gather them from the record, are as follows: The cause was tried in the district court of tbe third judicial district, in the county of Lewis and Clarke, in the year 1871. Certain special issues were then submitted to a jury impaneled in this cause. The jury found upon these issues, and brought in a general verdict also for ■ plaintiffs for damages. The objects of the action were to recover damages for the wrongful diversion of water, and for an injunction to restrain the defendants from diverting the same. IJpon the special findings both plaintiffs and defendants moved for a judgment. The court awarded judgment to the plaintiffs, and the defendants appealed from this judgment to this court, which, upon the hearing of the cause, made this record: “ Now on this day, this cause coming on for decision and judgment on appeal, the court rendered its opinion in writing, which was duly filed, and for reasons assigned in said opinion, it is ordered and adjudged here by the court that the judgment rendered and entered in this cause in the court below be reversed and the cause remanded.” "What was the effect of this order % Did it necessitate a new trial of the cause ? The decision of this court, it will be observed, was based upon an inspection of the opinion upon two propositions : First. This was an action in which law and equitable relief were asked, and a law and equitable cause of action united, and this was in violation of our Organic Act. Second. It was found by the jury, and was a conceded fact, that the defendants were the prior appropriators of one thousand inches of the waters of McLellan creek, and that the plaintiffs’ rights were based upon the appropriation of this water, after defendants had used it through their ditch, and that as a matter of law under these facts the defendants had the undoubted right to extend their ditch, so as to convey this water to a point where it would not flow into plaintiffs’ditch, and hence the court below ought to have given judgment for the defendants upon these findings.
As to the first proposition the decision of the supreme court of the United States in the case of Hornbuckle v. Toombs, 18 Wall. 648, eliminated it from the case. It held that under our Organic Act an equitable and legal cause of action, in certain cases, could be united in the same complaint. This left the opinion of this
Upon an inspection of section 378 of our Practice Act, it will be seen that the reversal of a judgment is not always equivalent to an order granting a new trial. "When a judgment is reversed a new trial may be ordered when it is proper or necessary. In determining what force and effect is to be attached to a judgment of this court, reversing the judgment of the court below, we may examine the opinion of this court. "When fully considered, I think the cases of Argenti v. The City of San Francisco, 30 Cal. 458, and Ryan v. Tomlinson, 39 id. 639, support this view. There is nothing in the former opinion in this case that can be construed into reversing the judgment for any errors that appeared in the trial of the cause before the jury. It might be construed that the cause was remanded for the pimpose of correcting the pleading so that not a legal or equitable cause of action might be presented. This would have necessitated a new trial. The remanding for that purpose, however, became unnecessary by the ruling in said case of Hornbuckle v. Toombs, by the highest appellate court known to our laws. The order remanding the cause for that purpose being inoperative, there was no reason for
Judgment affirmed.