Kleyenstuber v. Robinson

• Citation: 52 P. 1117,6 Ariz. 31
• Decision Date: 16 April 1898
• Docket Number: Civil 572
• Parties: F. A. KLEYENSTUBER, Defendant and Appellant, v. JOSEPH M. ROBINSON, Plaintiff and Appellee
• Court: Supreme Court of Arizona

52 P. 1117

6 Ariz. 31

F. A. KLEYENSTUBER, Defendant and Appellant, v. JOSEPH M. ROBINSON, Plaintiff and Appellee

Civil No. 572

Supreme Court of Arizona

April 16, 1898

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Graham. Owen T. Rouse Judge. Reversed.

The facts are stated in the opinion.

John McGowan, for Appellant.

Wiley E. Jones, for Appellee.

OPINION

STREET, C.J.

-- This action was brought by Joseph M. Robinson, appellee, in the district court of Graham County, against F. A Kleyenstuber, appellant, to obtain a perpetual injunction prohibiting the defendant from interfering with a water-ditch. The defendant made a denial of all the allegations of plaintiff's complaint, and the cause proceeded to trial. Judgment was rendered against the defendant, Kleyenstuber, from which judgment he appeals to this court.

We copy at length the bill of exceptions, which is as follows, to wit: "Now, on this 18th day of July, 1896, comes the defendant, and files herein the following, viz.: Bill of Exceptions. On the 27th day of April, 1896, this cause came on regularly to be heard by the court, without a jury. Plaintiff was called as a witness in his own behalf, and used, to illustrate his testimony, a plat, identical in drawing with Defendant's Exhibit I (see Transcript, page 18). Plaintiff offered in evidence Exhibit B (page 14 Trans.). Objected to by defendant as incompetent, irrelevant and immaterial, not tending to prove any averments of plaintiff's complaint. Objection overruled. Defendant excepts. Plaintiff testified that he had been in possession of the land described in his complaint continuously for five years, and that he had used the water mentioned in said complaint on said land, since June 4, 1895. Plaintiff and another witness testified that, just before the commencement of this action, they saw in said Frey's Creek an obstruction at the point where 'Robinson's Ditch' starts from said creek (Ex. I, Trans., page 18). Defendant offered to prove using Ex. I (Trans. p. 18), that by means of artificial canals, and partly by using the natural channels of said Frey's Creek, he had used the water of said creek for irrigating the lands owned by him, marked 'Kleyenstuber's Ranch,' (Ex. I, Trans. p. 18), for eighteen years prior to the commencement of this action, said water being the same which plaintiff testified he had used for five years. ...