Caruthers v. Pemberton

• Decision Date: 31 August 1869
• Citation: 1 Mont. 111
• Parties: CARUTHERS et al., appellants, v. PEMBERTON et al., respondents.
• Court: Montana Supreme Court

1 Mont. 111

CARUTHERS et al., appellants,

v.PEMBERTON et al., respondents.

Supreme Court of the Territory of Montana.

August Term, 1869.

Appeal from the Second District, Deer Lodge County.

THIS action was commenced in the district court in November, 1868, by Caruthers and others against Pemberton and others. The plaintiffs owned a water-ditch, known as the De Long ditch, which diverted the waters of Gold creek in Deer Lodge county prior to September 1, 1868. The defendants, who then did business in said county under the name and style of the Pioneer Ditch Company, owned a ditch, known as the Pioneer ditch, which diverted the waters of Gold creek about two miles above the head of the De Long ditch. The plaintiffs claimed that they were entitled by prior appropriation to the use of two hundred and fifty inches of water in the De Long ditch; and that the defendants, about September 1, 1868, wrongfully diverted the same and prevented it from flowing in their ditch. The prayer of the complaint was for a perpetual injunction restraining the defendants from diverting the water, and $3,000 damages. The answer alleged that the capacity of the De Long ditch to convey water was no more than one hundred inches according to miners' measurement; and that plaintiffs had always enjoyed the use of that amount since the construction of their ditch. No replication was filed by the plaintiffs.

The case was tried at the November term, 1868, and the jury returned a general verdict for defendants and also special findings. The court, KNOWLES, J., denied the plaintiffs' motion for a new trial and they appealed.

The other facts appear in the opinion.

J. C. ROBINSON, for appellants.

No replication is required under our statute. The court below erred in instructing the jury “that it was confessed by the plaintiffs in the pleadings that the appellants had had at all times as much as one hundred inches of water.” Acts 1867, 141, § 38; 144, §§ 50, 65; Bridges v. Paige, 13 Cal. 640;Piercy v. Sabin, 10 Id. 22;Herold v. Smith, 34 Id. 122; Voorhies, N. Y. Code, § 153.

The jury should have passed upon any portion of the one hundred inches of appellants' water that was diverted by respondents. The court erred in giving the other instructions and admitting certain testimony. Norwood v. Kenfield, 30 Cal. 400;Lally v. Wise, 28 Id. 540.

The showing of newly-discovered evidence is sufficient to entitle the appellants to a new trial.

The evidence was insufficient to support the findings and verdict of the jury. Smith v. Atherton, 34 Cal. 506;Hill v. Smith, 32 Id. 167;Franklin v. Dorland, 28 Id. 175.

CLAGETT & DIXON, for respondents.

The affidavits for new trial do not show surprise or diligence. They do not come within the statute. Prac. Act, §§ 193 and 194. The evidence which they contain is cumulative. This is no ground for a new trial. 1 Gr. & W. New Trials, 486; 3 Id. 1016, 1048.

The statement shows the weight of evidence is in favor of respondents. A new trial will not be granted, if there is a conflict of evidence, or any evidence to support the verdict. 1 Gr. & W. New Trials, 380; Kile v. Tubbs, 32 Cal. 333; 3 Gr. & W. New Trials, 1239.

The instructions are correct, and are more favorable to appellants than respondents. The special findings covered all the issues.

Evidence was properly admitted to show that part of the water in plaintiffs' ditch came from Pioneer gulch, and that the lower portion of their ditch was larger than the upper. The instructions did not mislead the jury or prejudice the plaintiffs. A new trial will not be granted if the complaining party could not be injured by the instructions; nor if justice has been done. Tompkins v. Mahoney, 32 Cal. 231; 1 Gr. & W. New Trials, 301; 3 Id. 862, 867, 868.

SYMES, J.

This was an action brought by plaintiffs for damages for the diversion of water by the defendants, which the plaintiffs claimed by prior appropriation for mining purposes, tried at November term of the district court, 1868. Verdict and judgment for defendants.

The complaint alleges in substance that plaintiffs on and prior to September 1, 1868, owned and possessed a waterditch, of the capacity of two hundred and fifty inches, miners' measurement, in Deer Lodge county, Montana Territory. It being an artificial water-ditch for diverting the waters of Gold creek, and known as the De Long ditch, and claimed by prior appropriation, waters of said creek, conveyed by said ditch to amount of two hundred and fifty inches. That on 1st of September, 1868, defendants wrongfully and unlawfully diverted the waters of said Gold creek and prevented same from flowing down plaintiffs' ditch, thereby damaging plaintiffs $3,000, for which they sue.

Defendants' answer admits plaintiffs' possession of said ditch; denies that ditch was of the capacity of two hundred and fifty inches, and alleges that at the time of appropriation ditch would convey one hundred inches and no more, and denies the diversion of any water belonging to plaintiffs. Answer further alleges that in August, 1866, defendants and those under whom they claim appropriated all the waters of said Gold creek then unappropriated, and constructed a ditch to convey same to Pioneer gulch, which ditch was of the capacity to convey six hundred inches, more or less, and known as Pioneer ditch, and takes the waters of said Gold creek about two miles above the head of said De Long ditch; that when Pioneer ditch was constructed De Long ditch would convey one hundred inches of water from said Gold creek and no more; that defendants were entitled to all the waters of said creek except one hundred inches, and had always allowed one hundred inches to flow down said De Long ditch without diversion. This case came up on order overruling motion for new trial, and errors and exceptions stated in the statement for same, as follows:

1. On the trial defendants ask plaintiffs' witness, if he did not in fall of 1866, when mining in Pike's Peak gulch, convey water from Pioneer gulch to where he was mining? which was objected to by plaintiffs as irrelevant, overruled and exceptions. 2. Plaintiffs' witness, Cook, testified that the capacity of plaintiffs' ditch was about one hundred and fifty inches. He thought so from amount of water flowing in Sharp and Williams & Co.'s bed-rock flume and amount they were compelled to use. On cross-examination, defendants asked witness if part of water in flume did not come out of Pioneer gulch? Objected to by plaintiffs as irrelevant. Overruled, and witness answered, it did. 3. Defendants asked their witness if part of the water which came through De Long ditch in 1866 to mines came from Pioneer gulch? Objected to by plaintiffs...