Brown v. Grubb

• Decision Date: 11 March 1913
• Parties: J. D. BROWN, M. A. BROWN and S. F. HORN, Respondents, v. GEORGE GRUBB et al., Appellants
• Court: Idaho Supreme Court

130 P. 1073

23 Idaho 537

J. D. BROWN, M. A. BROWN and S. F. HORN, Respondents, v. GEORGE GRUBB et al., Appellants

Supreme Court of Idaho

March 11, 1913

EVIDENCE-SUFFICIENCY.

1. Held, in this case, that the evidence supports the finding of the court and the judgment.

2. A witness will not be permitted to testify to ante-mortem statements made by a deceased person to said witness about a transaction that transpired between the deceased and a second party, where the second party is claiming an appropriation of water from a stream as against a third party who is also claiming an appropriation from the same stream which was made prior to the time the second party claims to have made his appropriation, for two reasons: First, that it is hearsay second, for the reason that the statement relates to a matter which is not involved in the controversy submitted to this court under the finding made by the trial court.

APPEAL from the District Court of the Sixth Judicial District for Lemhi County. Hon. J. M. Stevens, Judge.

An action to determine the priority and to quiet title to water. Affirmed.

Judgment affirmed. Costs awarded to respondents.

E. W Whitcomb and A. C. Cherry, for Appellants.

The ante-mortem statements of J. B. Morrow should have been admitted. There was no apparent interest to deceive. (2 Wigmore on Evidence, par. 1576.)

F. J Cowen, for Respondent.

The trial court took the view that the preponderance of the testimony was in favor of the respondent Horn, and the finding was made that his right should date from June 1, 1891. This finding should not be disturbed. (Buckle v. McConaghy, 12 Idaho 733, 88 P. 100; Heckman v. Espey, 12 Idaho 755, 88 P. 80; Robertson v. Moore, 10 Idaho 115, 77 P. 218; Parke v. Boulware, 9 Idaho 225, 73 P. 19; Stuart v. Hauser, 9 Idaho 53, 72 P. 719; Pine v. Callahan, 8 Idaho 684, 71 P. 473.)

The appellants ask this court to predicate error in the refusal of the lower court to admit the ante-mortem statements of J. B. Morrow and on the refusal of the lower court to allow them to prove general neighborhood gossip and current understanding with reference to this matter. Neither of the offers came within any of the well-known exceptions to the rule.

The fact that the author of the hearsay statement is dead, or cannot be found, does not affect the rule. (6 Ency. of Ev. 448.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This is an action to quiet title to eighty inches or one and three-fifths cubic inches per second of time of the waters of Morse creek, diverted and appropriated and used by the plaintiff Horn, and also certain waters appropriated by John D. Brown and M. A. Brown, and to have the rights of the plaintiff Horn declared prior in time and superior to the rights and claims of the defendants and each of them. The defendants answered and plead their respective rights to water appropriated from Morse creek. When the cause was called for trial, the parties all agreed as to the decree that should be entered except as to the date of the appropriation of the plaintiff S. F. Horn, and a decree was prepared and entered accordingly fixing and determining the rights of the respective parties, including the plaintiffs John D. Brown and M. A. Brown, and likewise S. F. Horn and all the defendants, describing the amount of water allowed to each of the parties and the priorities of each of the parties, and all questions except as to the date of the water appropriated by the plaintiff Horn. The appeal is from the judgment.

Counsel for appellants and respondents have entered into a stipulation and filed the same in this court that two questions...