Emerson v. Eldorado Ditch Co.

• Decision Date: 04 May 1896
• Parties: EMERSON v. ELDORADO DITCH CO.
• Court: Montana Supreme Court

44 P. 969

18 Mont. 247

EMERSON v. ELDORADO DITCH CO.

Supreme Court of Montana

May 4, 1896

Appeal from district court; Teton county; Dudley Du Bose, Judge.

Action by Rebecca S. Emerson against the Eldorado Ditch Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Plaintiff's complaint is, in substance, that the defendant entered upon certain lands belonging to and in her possession, and without any right, dug a ditch across the same, and diverted water by means thereof from the channel of a certain stream that defendant allowed the water from said ditch to overflow a meadow of plaintiff's said lands, causing injury to her hay crops to the extent of $750; that defendant continues to maintain said ditch across said lands, and overflow plaintiff's lands. The relief prayed for is that the ditch be declared a nuisance, that defendant be prohibited and restrained from maintaining the same, and that plaintiff be adjudged to recover the damages aforesaid. Defendant filed an answer, denying the allegations of the complaint, and setting up that prior to plaintiff's acquiring the title to the lands aforesaid, and while they belonged to the United States, it had dug and constructed the ditch complained of and appropriated by means thereof a water right. Plaintiff filed a replication to this answer, denying its allegations. A jury was impaneled and sworn, and the trial commenced. One witness was called for the plaintiff, who testified as to the amount of damage caused by the overflow of the ditch. At this stage of the proceedings, defendant made a motion for a judgment on the pleadings. The court thereupon denied the motion for judgment on the pleadings, but took the case from the jury, and announced that judgment would be given for the defendant if it would prove that its water right had been appropriated for some useful purpose. To the court's action in taking the case from the jury, and its announcement as to the only issue on which testimony was to be heard, the plaintiff objected and preserved exceptions. Defendant then admitted that plaintiff was the owner of the land at the time of its appropriation of water, that it had constructed its ditch without her consent, and intended to use the same in the manner alleged, and that the overflow from said ditch had, as claimed, damaged her to the extent of $750. Plaintiff rested. Certain evidence was then offered in behalf of the defendant, most of it under objections and exceptions duly taken. This evidence, in substance, was to the effect that in the year 1883 certain persons had dug a ditch, and appropriated, by means thereof, a water right; that thereafter a corporation was organized, and the persons who had acquired the water right aforesaid conveyed the same to said corporation. There was nothing in this evidence to show that the persons who appropriated it owned any lands at the time of their appropriation, but it inferentially appears that these persons had made this appropriation for the purpose of reclaiming desert lands. The evidence further shows that the stockholders in this corporation at at time of the trial owned tracts of desert lands irrigated by means of the aforesaid ditch. Plaintiff put in no evidence in rebuttal, and, at the close of defendant's testimony moved the court for judgment. The court denied plaintiff's motion, and rendered judgment for the defendant. Plaintiff saved exceptions. There was no motion for a new trial. Plaintiff appealed some 11 months after judgment against her.

J. G. Bair and Ed L. Bishop, for appellant.

Ransom Cooper and John B. Clayberg, for respondent.

PER CURIAM.

No motion for a new trial having been made, and no appeal having been taken within 60 days, the respondent contends that the statement on appeal does not present the evidence for review. In support of this contention, subdivision 1 of section 421 of the Code of Civil Procedure (Comp. St. Mont.) is cited. It is as follows: "An appeal may be taken, first, from the final judgment in an action or special proceeding commenced in the court in which the same is rendered within one year after the entry of judgment. But an exception to the decision or verdict on the ground that it is not supported by the evidence cannot be reviewed on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment." This section has been eliminated from the new Code of this state. In California, in connection with other sections of its statutes, it has a recognized function of its own, and there, on an appeal taken within the 60-day limit prescribed, the trial evidence embodied in a statement on appeal can be reviewed, to ascertain whether it supports a verdict or decision. See Hayne, New Trial & App., the latter part of section 96, and section 258. Before the adoption of the California Code, the rule under the old practice act of that state was that the question of the insufficiency of the evidence to justify a verdict or decision could be raised only after a motion for a new trial, and an appeal from the order in relation thereto. But the Code of California finally, by prescribing two kinds of exceptions, namely, exceptions to decisions upon matters of law and exceptions to decisions upon matters of fact (see Code Civ. Proc. Cal. §§ 647, 648; and Hayne, New Trial & App. § 258), extended the scope of the mode of review of the sufficiency of evidence on appeal. The new Montana Code of Civil Procedure (1895), in sections 1151 and 1152, includes the California (sections 647 and 648). Section 290 of the Code of Civil Procedure (Comp. St. Mont.) was identical with the California (section 647), but section 292 of said Code of Civil Procedure of Montana was as follows: "No particular form of exception shall be required. The objection shall be stated with so much of the evidence or other matter as is necessary to explain it, but no more, and the whole as briefly as possible." Section 1152 of the new Montana Code of Civil Procedure is as follows: "No particular form of exception is required, but the grounds of objection shall be particularly stated, except as provided in the next preceding section, and when the objection is to the verdict or decision upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient. The objection must be stated with so much of the evidence taken from the stenographer's notes, or other matter, as is necessary to explain it, but no more. Only the substance of the reporter's notes of the evidence shall be stated or used as evidence. Documents on file in the action or proceeding may be copied or the substance thereof stated, or a reference sufficient to identify them may be made when that will sufficiently present the objections and exceptions." The new Code of this state, therefore, recognizes the two kinds of exceptions mentioned above. This is somewhat of a digression, but it is a matter of interest to practitioners.

If, by reason of the adoption of section 1152 of the Code of Civil Procedure of 1895, which is substantially the same as section 648 of the Code of Civil Procedure of California, and adds to section 292 of the Code of Civil Procedure (Comp. St. Mont.), it should be held in this jurisdiction that the sufficiency of the evidence to support a verdict or decision can be raised by a bill of exceptions, as well as on appeal from an order in reference to a new trial, the time in which an appeal could be taken would apparently be one year, instead of 60 days. This would result from the elimination from the new Montana Code of subdivision 1, § 421, Code Civ. Proc. (Comp. St.). We know of no case in Montana, prior to the adoption of the Code of 1895, holding that evidence can be reviewed for the purpose of determining whether it supports a verdict or decision, without being embodied in a statement on motion for a new trial. The Montana decisions as to the review of evidence on appeal seem to have followed the decisions of California under its old practice act, and to be based wholly on section 296 of said Code of Civil Procedure (Comp. St.), which, in stating the grounds on which a new trial may be asked, in subdivision 6, says: "Insufficiency of the evidence to justify a verdict or other decision, or that it is against law." The force and effect of said subdivision 1 of section 421, and perhaps, also, section 290, of the Code of Civil Procedure (Comp. St.), was apparently ignored, in so far as the question of a review of the insufficiency of the evidence being had on an appeal from the judgment with a statement on appeal is concerned.

We will proceed to a discussion of the Montana decisions which respondent further relies upon to sustain its contention that no review of the evidence can be had in this case, because there was not motion in the lower court for a new trial. The following are cited: Allport v. Kelley, 2 Mont. 343; Chumasero v. Vial, 3 Mont. 376; Largey v. Sedman Id. 472; Broadwater v. Richards, 4 Mont. 52, 2 P. 544, 546; Lockey v. Horsky, 4 Mont. 457, 2 P. 19; Territory v. Young, 5 Mont. 245, 5 P. 248; Twell v. Twell, 6 Mont. 19, 9 P. 537; Mining Co. v. Hayes, 6 Mont. 31, 9 P. 581; Porter v. Clark, 6 Mont. 246, 11 P. 638; Blessing v. Sias, 7 Mont. 103, 14 P. 663; Lloyd v. Sullivan, 9 Mont. 588, 24 P. 218; Beatty v. Mining Co., 15 Mont. 314, 39 P. 82; Kleinschmidt v. Iler. 6 Mont. 122, 9 P. 901. Expressions in several of them are ambiguous, and, in order that their meaning may be made clearer, we will discuss them somewhat in detail. Their underlying principle is still a vital one, and by no means to be disregarded in interpretations of the exception, new trial, and appeal provisions of our...