Febes v. Tiernan

• Decision Date: 31 August 1870
• Citation: 1 Mont. 179
• Parties: FEBES et al., appellants, v. TIERNAN et al., respondents.
• Court: Montana Supreme Court

1 Mont. 179

FEBES et al., appellants,

v.TIERNAN et al., respondents.

Supreme Court of the Territory of Montana.

August Term, 1870.

Appeal from the First District, Madison County.

FEBES, and others, commenced this action in July, 1870, in the district court, to enjoin Tiernan and another from injuring their water ditch, and recover $2,500 damages for injuring said ditch, and diverting the water therefrom. The jury returned a general verdict for $200 for plaintiffs, and certain special findings. The defendants filed a motion in arrest of judgment on the verdict, because the jury did not find the defendants guilty of trespass, or the use of any force in committing any acts against the property of plaintiffs, and the special findings were in conflict with the general verdict. On August 2, 1870, the court, WARREN, J., sustained the motion, and entered judgment for defendants. Plaintiffs appealed.

WORD & SPRATT, for appellants.

There was no conflict between the general and special findings of the jury. Every material fact was found for the appellants. The finding that there was no force should have been disregarded by the court. This issue was not submitted to the jury, and was more a conclusion of law than of fact. 1 Chit. Pl. 205; 1 Bouv. L. D. 535; McDermott v. Higby, 23 Cal. 489.

The law presumes that every material issue, not submitted to the jury in the special findings, was found in the general verdict. McDermott v. Higby, 23 Cal. 489.

The court erred in assuming to determine the issues without the intervention of a jury, and thereby abused its discretion, and deprived parties of their right to a trial by jury. The judgment of the court is not consistent with the verdict and findings of the jury.

H. N. BLAKE, for respondents.

This is, substantially, an action of trespass. An injunction is asked for in aid of the action. Brennan v. Gaston, 17 Cal. 373. Special findings control the general verdict when they are inconsistent. Civ. Prac. Act, § 175.

The appellants must prove that the respondents committed the injuries complained of with force. 2 Greenl. Ev., §§ 613, 621, 623. The jury finds that no force was used by respondents. Appellants, having failed to prove the gist of their action, cannot recover for injuries resulting therefrom. Pico v. Colimas, 32 Cal. 580.

The respondents have not committed any acts that will entitle appellants to a perpetual injunction. Civ. Prac. Act, § 112; Sherman v. Clark, 4 Nev. 142, 148; Verdict and Findings.

If the court below did not abuse its discretion in refusing to grant the injunction, this court will not reverse the judgment. Slade v. Sullivan, 17 Cal. 106;Hicks v. Michael, 15 Id. 117.

KNOWLES, J.

This is an action for damages sustained by appellants, on account of the wrongful entry of respondents upon their water ditch, and the tearing down of its banks, and the destroying of a dam attached thereto, and the diverting of its waters. It is in the nature of a common-law action of trespass.

The jury rendered a general verdict for appellants. There were special issues presented to the jury, the second one of which is as follows:

“Did the defendants, or either of them, forcibly injure the ditch or dam in controversy, and divert the waters therefrom, as alleged in the complaint, and if either one of them, which one of them?”

To this the jury returned this answer: “We do not find evidence of forcible injury by either of the defendants.”

The counsel for the respondents moved to set the general verdict aside as inconsistent with this special finding of the jury, and for judgment for respondents. The court sustained this motion, and judgment was entered accordingly. This ruling of the court is assigned as error.

Actual force is not necessary to constitute a trespass upon land. 2 Hilliard on Torts, 76. In every trespass quare clausum fregit force is implied. 1 Chit. Pl. 126. The unauthorized entry upon the premises of another is a trespass. When such a state of facts is established, the law implies that the entry was done with force, and it is not necessary to offer any further evidence upon that point. The jury found no evidence of forcible injury, yet, if they found the respondent had done the acts complained of, the law...