Cottier v. Sullivan

• Decision Date: 10 April 1934
• Docket Number: 1817
• Parties: COTTIER v. SULLIVAN, ET AL
• Court: Wyoming Supreme Court

31 P.2d 675

47 Wyo. 72

COTTIER v. SULLIVAN, ET AL

No. 1817

Supreme Court of Wyoming

April 10, 1934

APPEAL from the District Court, Goshen County, C. O. BROWN, Judge.

Action by Robert M. Cottier against James E. Sullivan and another. From the judgment, plaintiff appeals.

Appeal dismissed.

For the plaintiff and appellant there was a brief by Reid & More, and J. M. Roushar, all of Torrington, and oral argument by Mr Erle H. Reid.

The findings as to trespass and nuisance are binding on all parties and are not appealed from. The court erred in awarding nominal damages only. Where the wrong and the damages resulting are established, plaintiff is entitled to substantial damages. 17 C. J. 725; Slane v. Curtis, 286 P. 373; 8 R. C. L. 485; Silva v. City (Okla.) 148 P. 150; 4 C. J. 881; Rhodes v. Steinmetz (Colo.) 55 P. 814. The nuisance has been abated in this case. Carpenter v. City (Nebr.) 89 N.W. 637; Ewing v Rider (Md.) 93 A. 409; Duggan v. B. & O. R. R., 28 A. 182; Ocana v. Copper Company (Ariz.) 194 P 959. The proved, undisputed and recoverable damages on the second, third, fourth and fifth causes of action aggregated $ 2600.00. The judgment should be modified accordingly.

For the defendants and respondents there was a brief and oral arguments by William E. Mullen of Cheyenne, and J. L. Sawyer of Torrington.

The ownership of the W1/2 of the SE1/4 of Sec. 34, Twp. 23, Range 62 by Goshen Townsite and Development Company was a material issue under the pleadings and evidence in this case, and should have been decided by the trial court, such ownership having been established by the evidence. The destruction of the laterals by said company and the construction of other laterals, including the one in controversy, were acts performed by the Townsite Company on its own property and it could not commit trespass upon its own property. It was established by the evidence that the townsite is a seep hole attracting underground waters from surrounding territory and impregnated with alkali that destroys concrete structures. There was no evidence showing that the basements in controversy were properly constructed. The claimants were property owners who acquired proportionate interests in the lateral complained of. Findings that the lateral was constructed without a license from the town, and that defendants had damaged plaintiff or his assignors are unsupported by the evidence. The record fails to show when the judgment was entered, and the appeal should be dismissed. Hahn v. Citizens State Bank, 25 Wyo. 467; W. H. Holliday v. Bundy, 42 Wyo. 61; Faulkner v. Faulkner, 27 Wyo. 62; Scott v. Rock Products Company, 37 Wyo. 527; Woodruff v. Company, 38 Wyo. 70. The cases of Coffee v. Harris, 27 Wyo. 394 and Thomas v. Bivin, 32 Wyo. 478, holding that if the entry of the judgment is actually shown, the date may be presumed to be that of its rendition, will not aid in the present case, for the reason that the only date on the judgment is June 16, 1932, and if the entry is presumed to be on that date, the record shows that the notice of appeal was not served within ten (10) days thereafter as required by statute. Nor is the entry date shown by certificate annexed to the appeal record. If so shown, the case of McDonald v. Mulkey, 29 Wyo. 99 might save the appeal. Electrolytic Copper Company v. Board, 42 Wyo. 67. The finding that defendant Sullivan had been negligent in the maintenance of the ditch without correcting the seepage and percolation therefrom, was unsupported by plaintiff's evidence and pleadings. Plaintiff's witness Phil Rouse testified that the seepage conditions testified to by various witnesses came from other sources than the lateral complained of, and had been affecting the basements for many years. Plaintiff proved by other witnesses that the lateral had been maintained by tenants and employees of defendant Sullivan. No proper measure of damages was shown by plaintiff. The case of Slane v. Curtis cited by plaintiff is not in point on the facts. Nominal damages are frequently awarded for a technical injury due to a violation of some legal right. 17 C. J. 714; Sutherland Damages, 2d Ed. Section 9; 1 Joyce Damages, Sec. 8; Chaffin v. Frees Mfg. Co. (N. C.) 47 S.E. 226; Blink v. Co. (Okla.) 152 P. 81; Maher v. Wilson, (Cal.) 73 P. 418; Western Union Co. v. Lawson (Kans.) 72 P. 283. Even if the decree be construed as one rendered upon a conflict of evidence, it will not be disturbed on appeal. Brown v. Citizens Bank, 38 Wyo. 469; Baylies v. Vanden Boom, 40 Wyo. 411.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

Respondents moved to dismiss the appeal on the ground that the record on appeal fails to show either the entry of the judgment or the date when it was entered. Hahn v. Citizens' State Bank, 25 Wyo. 467, 171 P. 889, 172 P. 705, and Goodrich v. Big Horn County Bank, 26 Wyo. 42, 174 P. 191, are cited in support of the motion. These cases hold that the record must show both the entry and date of entry of the judgment appealed from. Entry is a prerequisite to the right of appeal, and the date of entry must be shown in order that the court may see whether the steps necessary to perfect the appeal have been taken within the time allowed by statute. In each of the cited cases the record failed to show that the judgment was entered. In the case at bar the certificate of the clerk states "that annexed hereto are true and correct copies of all the filings made in the case * * * together with true copies of all the orders and judgment made in said cause all full and true, as the same appear recorded at length in the journal of said court, and more particularly described as follows:" The certificate then sets forth a list of papers preceding and annexed to the certificate. Among the things listed is "Decree, filed July 5th, 1932." This is the only judgment or decree listed in the certificate or contained in the record. Turning to the papers composing the record we find a copy of what purports to be the judgment, entitled "Decree," signed by the judge and endorsed "Filed this 5th day of July, 1932, Dudley Conaway, Clerk of District Court." There can be no doubt that this is the judgment or decree referred to in the clerk's certificate which states that "all orders and judgment" are "recorded at length in the journal." The record, therefore, shows the entry of the judgment.

The record must show not only the entry of the judgment but also the date of entry. In this case the date of entry is not shown by any direct recital, but under our previous decisions that is not necessary. In Coffee v. Harris, 27 Wyo. 394, 197 P. 649, the record contained a copy of a dated judgment certified to be a true copy as it appeared of record in the journal of the court. The clerk's certificate did not state when the judgment was entered, but we presumed it was entered on the day of its date, as there was nothing in the record to indicate the contrary. In Thomas vs. Bivin, 32 Wyo. 478, 235 P. 321, the record contained no affirmative showing as to the date of entry of the judgment, but did show the date of rendition, and we presumed that it was entered on that date. In Barnett v. Finance Ass'n., 38 Wyo. 511, 268 P. 1025, we said: "If the entry of record is actually shown, the date may be presumed to be that of the rendition, or the date which it bears." See, also, State v. Allen, 42 Wyo. 51, 288 P. 1058.

Under the foregoing authorities, we may presume that the judgment in the case at bar was entered on the date it was rendered if that date appears from the record and there is nothing to indicate that it was entered at some other time. It is evident that, following a common and proper practice in cases of this kind (Hahn v. Citizens State Bank, supra, at p. 479 of 25 Wyo. 467, 171 P. 889, 172 P. 705), the form of the judgment was approved and signed by the trial judge, and then delivered to the clerk for entry. The delivery of this approved and signed form to the clerk for entry may properly be considered the last act in the rendition of the judgment. Though, perhaps, the form for judgment need not have been "filed" by the clerk, we accept his statement in his certificate, that it was filed July 5, 1932, as showing that it was delivered to him on that day. This is confirmed by the file mark on the copy of the judgment contained in the record. We think, therefore, that the record shows that the judgment was rendered on July 5, 1932. As the record shows its entry on the journal, we shall presume that it was entered on the day of its rendition, as there is nothing to indicate the contrary. The case cannot be dismissed on the grounds stated in the motion.

The case was submitted both on the motion to dismiss and on the merits. In considering the merits we have come to the conclusion that the appeal must be dismissed because it is not taken from the judgment nor from a separable part of the judgment.

The Goshen Ditch Company, defendant and respondent, hereafter called the ditch company, maintains and operates an irrigation system. Sullivan, the other defendant and respondent, owns 80 acres of farm land irrigated by water supplied by the ditch company. The lateral used to carry this water runs in a general northeasterly direction from its headgate in the canal of the ditch company to Sullivan's land. Between the headgate and Sullivan's land the lateral crosses another 80-acre tract, formerly farming land which several years ago was bought by the Goshen Townsite and Development Company (hereafter called the townsite company) and platted as a part of the townsite of the new town of Yoder. The townsite company also took possession of Sullivan's land under a contract of purchase, and then changed the location of the lateral...