Gila Water Co. v. Gila Land & Cattle Co.

• Decision Date: 14 July 1925
• Docket Number: Civil 2351
• Citation: 28 Ariz. 531,238 P. 336
• Parties: GILA WATER COMPANY, a Corporation, Appellant, v. GILA LAND & CATTLE COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

238 P. 336

28 Ariz. 531

GILA WATER COMPANY, a Corporation, Appellant, v. GILA LAND & CATTLE COMPANY, a Corporation, Appellee

Civil No. 2351

Supreme Court of Arizona

July 14, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.

Messrs Ainsworth & De Longy, for Appellant.

Mr Richard E. Sloan, Mr. C. R. Holton, and Mr. Greig Scott, for Appellee.

OPINION

LOCKWOOD, J.

Gila Land & Cattle Company, a corporation, hereinafter called plaintiff, brought suit against the Gila Water Company, a corporation, hereinafter called defendant, for damages it claimed to have suffered by the wrongful diversion by defendant of water to which plaintiff was entitled. The case was tried to a jury, which returned a verdict for plaintiff in the sum of $18,092. Judgment was duly entered on the verdict, and, after the usual motion for a new trial was made and overruled, defendant appealed. There are some 17 assignments of error, which we will consider in their order:

The first six refer to the admission of certain evidence. So far as these assignments are concerned, it appears that no objection was made at the trial to the admission of this evidence, nor was there a motion to strike after it had been admitted. We therefore cannot consider them. 3 C.J. 807.

The next objection is that the court instructed the jury that, in a previous case between plaintiff and defendant, it was adjudicated, on September 26, 1922, that plaintiff had a valid appropriation of water for 12 cubic feet per second superior to any rights of defendant. The contention apparently is that, since such decree does not give the date of the acquisition of plaintiff's water right, it is not admissible in order to prove such right was superior to that of defendant for the year 1921, when the damages set up in the first cause of action are said to have accrued, and that the instruction was one of fact and not of law. The complaint, answer, and judgment in the case referred to were admitted in evidence in this case without objection and we think established conclusively that plaintiff's appropriation was long anterior to the date of the alleged damages. It is not error for the court to instruct the jury on a question of fact conclusively established by the evidence. Ragan et al. v. Kansas City & S.E.R. Co., 144 Mo. 623, 46 S.W. 602; 38 Cyc. 1667.

The instruction next complained of hinges on the one just discussed, and since that was correct, the following one was necessarily right.

The instruction quoted below is objected to:

"The court instructs the jury that, where land is prepared for growing crops, but the same is not planted and cultivated by reason of the wrongful act of another, the measure of damages in such case is the reasonable rental value of the land during the time the land was prevented from being cropped by reason of such wrongful act."

It is not claimed the general principle laid down is wrong in the abstract, but it is urged that the instruction as given allowed recovery for some land which had not a valid appropriation of water. We do not think the language of the instruction is susceptible of this interpretation, as it plainly does not mention what, if any, land was affected.

The measure of damages for the destruction of growing crops, given by the court in its instructions, is also complained of. This was certainly as favorable to the defendant as it was entitled to. Beville v. Allen, ante, p. 397, 237 P. 184, just decided.

The instruction that, if the...