Brossard v. Morgan

• Decision Date: 11 February 1899
• Parties: BROSSARD v. MORGAN
• Court: Idaho Supreme Court

56 P. 163

6 Idaho 479

BROSSARD v. MORGAN

Supreme Court of Idaho

February 11, 1899

NEW TRIAL-MOTION TO CORRECT DECREE.-An order granting a new trial will not be reversed on appeal, unless it is made to appear that there has been a manifest abuse of discretion in granting a new trial.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Action of the court or judge in granting the new trial sustained. Costs of appeal awarded to respondents.

John T Morgan and Dietrich & Stevens, for Appellant.

In this cause there is no necessity for a new trial, as the decree is subject to the control of the court, and may be changed or altered by the court if he shall deem it necessary to correct it, to make it conform to the facts and the law. (Idaho Rev Stats., sec. 4229; McMillian v. Woolley, ante, p. 36, 51 P. 1029, 1032.) Where an erroneous judgment or decree has been entered, the proper practice is to make a motion to correct or modify the erroneous judgment or decree. Such application should be made within six months after the judgment was entered. (Idaho Rev. Stats., sec. 4229; State v. Eves, ante, p. 144, 53 P. 543.) The right of the first appropriator of water on the public lands may be lost by adverse possession of another, and where other person has had the continued, uninterrupted and adverse enjoyment of water for a sufficient length of time, the law will presume a grant of the right so held and enjoyed by him. (Union Water Co. v. Crary, 25 Cal. 504, 85 Am. Dec. 145; Smith v. Logan, 18 Nev. 149, 1 P. 678.) Five years' adverse possession is sufficient to bar an action to enforce a water right. (Evans v. Ross (Cal.), 8 P. 88; Pomeroy on Riparian Rights, sec. 137; Kleyenstuber v. Robinson (Ariz.), 52 P. 1117.) If a proprietor has made a special use of water by diverting it, and made a continuous and adverse use for the period of time prescribed by statute of limitation for entry on land, a grant will be presumed for such use. (28 Ency. of Law, 1002; Bealy v Shaw, 6 East, 208; Balston v. Benstead, 1 Camp 463; Cowell v. Thayer, 5 Met. (Mass.), 253, 38 Am. Dec. 400.)

W. T. Reeves, Hawley & Puckett and W. E. Borah, for Respondents.

We call attention in the first instance to the well-established rule, which is to the effect that it had been uniformly held that a motion of a new trial on the ground of insufficiency of evidence to justify the verdict or decision is addressed to the sound, legal iscretion of the court below, an that on appeal from an order granting new trial, the appellate court will not reverse the order unless it appears that there has been a manifest abuse of discretion. In view of the fact that both parties were dissatisfied, either with the findings or the decree, as appears from the records and brief, it would seem that, in this case, there could be no possible abuse of discretion. (Pico v. Cohn, 67 Cal. 258, 7 P. 680; Pacific R. M. Co. v. Tel. Co., 79 Cal. 340, 21 P. 840; Breckinridge v. Crocker, 68 Cal. 403, 9 P. 426; Phelps v. Mining Co., 39 Cal. 410; Pierce v. Schaden, 55 Cal. 406.)

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This is an appeal from an order granting a new trial. It appears that, after the motion for a new trial was made, the appellant, who was the defendant, interposed a motion to correct the decree, so as to make it contain the following to wit: "That the said John T. Morgan, is entitled to, and adjudged and decreed the right to, the use of one-third of the water of Stockton creek, by prescription." The record does not inform us whether said motion was passed upon by the court. The motion for a new trial was granted, which resulted in a denial of the motion to correct the decree. The judgment and decree must be supported by the findings of fact, and we search the record in vain for a finding of fact that would support a decree such as is demanded by appellant's said motion. The court finds the rights of respondents Brossard, Vanness and Hadley to the use of water awarded to them to be prior...