Kent v. Richardson

• Citation: 8 Idaho 750,71 P. 117
• Parties: KENT v. RICHARDSON
• Decision Date: 22 December 1902
• Court: United States State Supreme Court of Idaho

71 P. 117

8 Idaho 750

KENT v. RICHARDSON

Supreme Court of Idaho

December 22, 1902

ISSUES-FINDINGS.-Where the priority of right to the use of water is not put in issue by the pleadings, it is not error for the court to fail or refuse to find as to priority.

STIPULATION AS TO FINDINGS.-Where it is stipulated that a finding as to the amount of the cost of the construction of the ditch in question is immaterial, and the court makes a finding of such cost, error cannot be predicated on the ground of the insufficiency of the evidence to support that finding.

BOOKS OF ACCOUNT-ADMISSION IN EVIDENCE.-Entries in an account-book kept by decedent shown to have been made at or near the time of the transaction, and that decedent was in a position to know the facts entered, may be read as evidence: 1. Where it is shown that the entry was made against the interest of the person making it; 2. When it is made in a professional capacity and in the ordinary course of professional conduct 3. When it is made in the performance of a duty specially enjoined by law.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Affirmed. Costs of this appeal awarded to the respondent.

A. B Gough and T. L. Glenn, for Appellant.

From the pleadings and from the evidence introduced by plaintiff it seems to us perfectly clear that the question of priority of appropriation was squarely before the court to be decided and determined, and that no other construction can legally be placed upon the pleadings and the evidence. Such being the fact, it became the imperative duty of the court to determine the priority of the parties. The rule in this court is well settled that it is the duty of the trial court in a case of this character to determine the priorities of the respective parties to the waters in question. (Kirk v. Bartholomew, 3 Idaho 367, 29 P. 40; Geertson v. Barrack, 3 Idaho 344, 29 P. 42.) We submit that no person can obtain a vested right to any particular quantity of water by merely contributing to the expense of constructing a ditch or canal for diverting the same. A valid appropriation can only be made for some useful or beneficial purpose and the amount or quantity, which may lawfully be appropriated is governed and controlled by the necessities of the person making the appropriation and his ability and opportunity to put the water to a beneficial use. (Idaho Rev. Stats. 1887, sec. 3156; Conant v. Jones, 3 Idaho 606, 32 P. 250; Simmons v. Winters, 21 Or. 35, 28 Am. St. Rep. 727, 27 P. 7; Nichols v. McIntosh, 19 Colo. 22, 34 P. 278.)

Budge & Budge and E. E. Chalmers, for Respondents.

Did the court err in not admitting Defendant Larocco's Exhibits Nos. 1 and 4 in evidence? We reiterate our objections here to the admissibility of the above-named exhibits. After these books were inspected by the court, our objection was sustained. We also call the court's attention to the following authorities herewith cited by us in support of our contentions asking the court to bear in mind this fact that these books are not the property of a party to this action; that the alleged entries do not represent the interest of a party to this action, but are merely the private memorandum of a third party. Our own statutes, in our opinion, settle conclusively the question of the admissibility of the exhibits referred to. Section 5996 of the Revised Statutes of 1887 reads as follows: The entries and writings of a decedent, made at or near the time of the transaction, and in a position to know the facts stated therein, may be read as prima facie evidence of the facts stated therein, in the following cases: 1. When the entry was made against the interest of the person making it; 2. When it was made in a professional capacity, and in the ordinary course of professional conduct; 3. When it was made in the performance of a duty specially enjoined by law. (Greenleaf on Evidence, 14th ed., secs. 117-120; Hay v. Peterson, 6 Wyo. 419, 45 P. 1073, 34 L. R. A. 581, and notes; Hall v. Chambersburg Woolen Co., 187 Pa. 18, 65 Am. St. Rep. 563, 40 A. 986, 52 L. R. A. 689, and notes on pp. 710, 711.)

SULLIVAN J., STOCKSLAGER, J. Quarles, C. J., Stockslager, J., and Sullivan, C. J., concurring. Ailshie, J., took no part in this decision.

OPINION

SULLIVAN, J.

This action was brought by S.W. Kent against Abbie Larocco Richardson, who is the appellant here, Owen Quayle, Ed. Kent and Matt Smit, to determine the value of the labor contributed by each of the parties hereto in the construction of that certain water ditch described in the complaint, and to have ascertained and decreed the interest that each owns in said ditch and the waters flowing therein, and for an injunction against the defendants, and for judgment for $ 200 against defendants Abbie Larocco Richardson and Quayle for damage plaintiff had sustained by their alleged unlawful acts in depriving plaintiff of the use of certain water. The appellant, Abbie Larocco Richardson, denied generally the material allegations of the complaint, and, by way of cross-complaint, alleged that she is the owner of certain land (describing it), and that she is the owner of seven-tenths of the ditch described in the complaint, and the water flowing through the same, and prays that plaintiff take nothing in this action, and that the amount of water flowing in said ditch be determined by the court, and that she be decreed to be the owner of seven-tenths thereof. By supplemental complaint, plaintiff demanded additional damages in the sum of $ 500. It appears that defendant Ed. Kent after the commencement of this action sold his interest in said ditch to the plaintiff, and that subsequent to the commencement of this action appellant Abbie Larocco intermarried with one J. M. Richardson, and that the trial court directed that all further proceedings therein, so far as she was concerned, should be in the name of Abbie Larocco Richardson. The cause was tried by the court without a jury, findings of fact waived, and judgment was entered adjudging the plaintiff, S.W. Kent, to be the owner of an undivided six-fourteenths, and the appellant, Abbie Larocco, an undivided seven-fourteenths, and defendant Matt Smit an undivided one-fourteenth of said ditch, dams, headgates, and the water flowing therein. During the trial it was stipulated that the trial judge should view the dam and ditch in controversy, which he did, and the record shows that he found that the carrying capacity of said ditch was two thousand five hundred inches, and that there was an abundance of water in the Casto slough, from which said ditch was taken, to furnish that supply of water, and that the cost of the construction of said ditch was $ 2,800, although it is certified by the judge that counsel stipulated that the fixing of the cost of the construction of said ditch was immaterial, and for that reason that finding of the court on that fact was made regardless of the evidence. On the basis of $ 2,800 as the cost of said ditch, the court found that appellant was entitled to a credit or interest therein of $ 1,400, that defendant Smit was entitled to an interest of $ 200, and...