Jones v. Vanausdeln

• Decision Date: 23 March 1916
• Citation: 156 P. 615,28 Idaho 743
• Parties: AL JONES and HENRY JONES, Appellants, v. H. C. VANAUSDELN et al., Respondents
• Court: Idaho Supreme Court

156 P. 615

28 Idaho 743

AL JONES and HENRY JONES, Appellants, v. H. C. VANAUSDELN et al., Respondents

Supreme Court of Idaho

March 23, 1916

ARTESIAN WELLS-ACTION TO ENJOIN USE OF-PROOF REQUIRED-CONFLICTING EVIDENCE-FINDING OF ULTIMATE FACTS-DECREE-ADJUDICATION OF RIGHTS.

1. Where the owners of a group of artesian wells bring an action against the owners of another group of wells which were sunk at a later date, to restrain the latter from operating their wells, on the ground that they are tapping the same subterranean flow and thereby decreasing the flow in plaintiffs' wells, satisfactory and convincing proof should be adduced before a court of equity would be justified in permanently enjoining defendants from the operation of their wells, since witnesses cannot testify by actual observation to the exact origin and course of subterranean waters, and the decrease in flow of plaintiffs' wells might be due to other causes.

2. Where a trial court, sitting as a court of equity, makes findings of fact based upon conflicting evidence, and there is evidence to support both theories of the case, and from which reasonable men might draw different conclusions, such findings of fact will not be disturbed on appeal.

3. Where a trial court makes a finding of fact which is ultimate in its effect and decisive of all the material issues, the losing party has no ground for complaint because the court does not make findings of other facts in issue which are probative or subordinate as regards the main issue in the case, and the determination of which is made unnecessary by such finding of ultimate facts.

4. Held, that the record in this case supports the finding of the lower court to the effect that there was insufficient evidence to show the existence of an underground connection between plaintiffs' and defendants' wells.

5. In an action to restrain the owners of a group of artesian wells from operating the same, on the ground that such operation decreases the flow of water in plaintiffs' wells, the gist of the action is the question of defendants' right to operate their wells, and when the court found that the evidence was insufficient to establish that there is an underground connection between the two groups of wells and accordingly rendered judgment in favor of defendants, the lower court was not required to adjudicate the rights of either of the parties to the use of subterranean waters, even though such adjudication was prayed for in the complaint, since the court by its finding of fact has determined that the evidence does not show that the parties take water from the same subterranean flow.

[As to rights of adjoining land owners to use of premises, see note in 123 Am.St. 566]

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Edward A. Walters, Judge.

Action to restrain defendants from diverting water through certain artesian wells. Judgment for the defendants. Modified and affirmed.

Judgment affirmed. Costs awarded to respondents.

W. P Guthrie and J. C. Rogers, for Appellants.

"Our system requires a finding of fact upon every material issue." (Carson v. Thews, 2 Idaho 176, 9 P 605.)

"Failure to find upon all the material issues upon which evidence was introduced is error for which a new trial will be granted." (Brown v. Macey, 13 Idaho 451, 90 P 339; Wood v. Broderson, 12 Idaho 190, 85 P. 490; Cargnani v. Cargnani, 16 Cal.App. 96, 116 P. 306; Davies v. Angelo, 8 Cal.App. 305, 96 P. 909.)

None of the findings made by the court will cure the error arising from the court's failure to find directly upon all the material issues arising under the pleadings. (Sterrett v. Sweeney, 15 Idaho 416, 128 Am. St. 68, 98 P. 418, 20 L. R. A., N. S., 963; Pittock v. Pittock, 15 Idaho 426, 98 P. 719; Harlan v. Eli, 55 Cal. 340; Ladd v. Durkin, 54 Cal. 395; Ladd v. Tully, 51 Cal. 277.)

If the defendants have a right to that portion of the decree establishing title in themselves, the same principle gives us the same right to have our ownership in the wells and to the use of the water established in the decree, and this right exists independent of the question as to whether there is a connection between the flow of water to the two systems of wells, or not, this being an action in rem. (2 Wiel on Water Rights in the Western States, 3d ed., par. 1191, p. 1003, and authorities thereunder cited.)

C. C. Cavanah and A. M. Bowen, for Respondents.

The burden of proof is upon the plaintiffs. The proof, to establish an underground connection, must be direct and positive, and conclusively establish the connection. The influence or injury must not be theoretical or possible, but established by positive evidence, capable of no other reasonable construction. (Bower v. Moorman, 27 Idaho 162, 147 P. 496.)

The court is required to find on material issues and upon ultimate facts, not immaterial issues or probative facts. The ultimate fact in issue was whether defendants' wells tapped plaintiffs' flow and lessened same. This fact was found against plaintiffs, and therefore the extent of loss, if any, was immaterial. (Foore v. Simon Piano Co., 18 Idaho 167, 108 P. 1038; Fouch v. Bates, 18 Idaho 374, 110 P. 265; Brown v. Macey, 13 Idaho 451, 90 P. 339; Montpelier Mills Co. v. City of Montpelier, 19 Idaho 212. 113 P. 741; Edmundson v. Taylor, 17 Idaho 618, 106 P. 991; Leggat v. Blomberg, 15 Idaho 496, 98 P. 723.)

The primary object of the suit at bar was to obtain an injunction restraining the use of defendants' wells. The decree of the court was responsive to this issue. No issue was made so as to warrant a decree for plaintiff unconnected with the use of defendants' wells. Where a plaintiff in equity frames his bill of complaint on a certain theory on which he bases his right to recover, the proof must be such as to warrant a decree in conformity to this theory; and it is not enough to show that the proof warrants relief on some other theory. (16 Cyc. 485; Rejall v. Greenhood, 92 F. 945, 35 C. C. A. 97; Livingston v. Hayes, 43 Mich. 129, 5 N.W. 78.)

Where the court grants all the relief necessary to effect the object of the court, and the entire purpose of the litigation has been served, it is not error for the court to refuse to go further. (Hill v. Phelps, 101 F. 650, 41 C. C. A. 569.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought by plaintiffs, who are appellants, for the purpose of restraining defendants from diverting water through certain artesian wells, which it was alleged derived their supply from a subterranean flow to which plaintiffs had a prior right.

It is alleged, among other things, in the complaint, that the appellants are partners and are operating under the name and style of Jones Brothers; that on the first day of May, 1906, and from thence on down to the commencement of this action, they were the sole owners of 320 acres of land (describing it) and the right to use for the irrigation of said land and for stock and domestic purposes 319.61 inches of water of the flow of certain artesian wells situated upon said lands; that the appellants constructed said wells to the depth of 550 and 560 feet respectively, and struck in each well a stream of subterranean water which flowed above the surface of the ground to a height of about twenty feet and in an aggregate amount of about 319.61 inches, which water was used by the appellants each year for the proper irrigation of said land and for stock and domestic purposes, and that such water was necessary to said plaintiffs for said purposes.

It is also alleged that in the month of October, 1910, without the consent and against the will of appellants, respondents sunk certain wells near appellants' said tract of land. The surface of the land where defendants' wells were sunk was about sixty feet lower than the surface of the land where appellants' wells were sunk. It is alleged that defendants' wells were sunk to a depth of four hundred to five hundred feet, and struck the same subterranean flow of water that supplied appellants' said wells and thereby reduced the flow of appellants' wells to the extent of from 75 to 100 inches and thereby deprived appellants of the enjoyment and use of said amount of water, to their great and irreparable damage and injury.

Plaintiffs prayed for an injunction against the defendants, requiring them to cease diverting said water by means of said wells, and that upon the final hearing said injunctive order be made perpetual and that plaintiffs be adjudged and decreed to be the prior appropriators of said subterranean flow of water as against defendants, to the amount of 319.61 inches thereof.

The defendants answered and put in issue many of the material allegations of the complaint and prayed that the plaintiffs take nothing by this action; that the injunction be denied and that defendants have judgment for their costs and for such other relief as to the court might seem just and equitable.

The issues thus made were tried by the court without a jury and the court made its findings of fact, conclusions of law and entered judgment in favor of the defendants, and decreed to the defendants the right to the use of all the water flowing from their said wells.

The appeal is from the judgment.

The main contentions are that the court failed to make findings of fact upon certain material issues made by the pleadings, and that the findings of fact made are not supported by the evidence.

Upon the first question it is contended that the court made no finding as to whether or not the appellants' wells had decreased in flow after the respondents' wells commenced to flow, and if they had decreased, that it failed to find how much the decrease was.

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