Louth v. Kaser, 3401
| Court | United States State Supreme Court of Wyoming |
| Writing for the Court | HARNSBERGER |
| Citation | 405 P.2d 276 |
| Parties | William LOUTH and George Louth, Administrators of the Estate of Charles Louth, Deceased, Appellants (Charles Louth, Deceased, defendants below), v. C. E. KASER and Clifford G. Kaser, Appellees (Plaintiffs below), and E. G. SANDERS, Appellee (Third-Party defendant below). |
| Docket Number | No. 3401,3401 |
| Decision Date | 31 August 1965 |
Page 276
v.
C. E. KASER and Clifford G. Kaser, Appellees (Plaintiffs below), and E. G. SANDERS, Appellee (Third-Party defendant below).
James A. Greenwood, Cheyenne, and Pence & Millett and Alfred M. Pence, Laramie, for appellants.
Henderson, Godfrey, Kline & Uchner and Paul B. Godfrey, Cheyenne, for appellees.
Page 277
Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.
Mr. Justice HARNSBERGER delivered the opinion of the court.
Although this litigation was commenced on November 14, 1958, as an action by plaintiff C. E. Kaser to restrain defendant Charles Louth from interfering with Kaser's maintenance, operation, repair, construction, cleaning out, and use of John Gilland Ditch and its headgate which were located upon and across Louth's lands, that phase of the action was concluded by an agreement and stipulation of the parties approved and adopted by the district court's judgment dated March 24, 1960, in which it was decreed that Kaser was authorized to enter upon defendant's lands for the purpose of repairing and constructing, under supervision of a former state engineer of Wyoming, the original John Gilland Ditch line and which authorized and directed plaintiff Kaser to maintain the John Gilland Ditch across the lands of Louth including the headgate and measuring weir in a proper state of repair so as to permit adjacent use thereof in a manner not to interfere with Louth's proper use of his lands adjacent to the John Gilland Ditch and permit Kaser's entry upon Louth's lands for those purposes only.
That portion of the judgment and decree was not appealed.
However, prior to the entry of this judgment and decree, the court had permitted Louth to amend his answer to Kaser's complaint by pleading that the John Gilland Ditch had never conveyed from Lodge Pole Creek, from which Kaser had a water right for 3.50 cfs of water for irrigation of 245 acres of land, water in excess of 1.50 cfs; that 97 acres of the Kaser lands for which his appropriation was adjudicated had never been irrigated by diversion of water from Lodge Pole Creek through the John Gilland Ditch; that the adjudicated water right had been abandoned for more than 50 years to the extent of 97 acres; that not in excess of 148 acres of Kaser's lands had ever been irrigated under the John Gilland Ditch water right; that for more than five years Kaser had not diverted any water from Lodge Pole Creek under the John Gilland Ditch appropriation and applied it to beneficial use upon any land; and that the John Gilland water right had been abandoned since 1952.
Notwithstanding the amendment was permitted, the district court refused to hear any evidence upon the matter of alleged abandonment. Upon appeal to this court because of this denial we held this exclusion of evidence was error and remanded the case for new trial. See Louth v. Kaser, Wyo., 364 P.2d 96.
Following the remand, additional parties were added and additional pleadings were filed in which Louth claimed damages for injury to his lands due to activities of Kaser and his agents, and Kaser counter-claimed for damages for interference with his entry upon Louth's lands to service the John Gilland Ditch. The entire cause was then tried to a jury.
By a pretrial order it was ruled, without objection from any party, that such pretrial order superseded all pleadings and should govern the course of the trial. That order also ruled as a matter of law that plaintiff Kaser had a right of way across Louth's lands for an irrigation ditch of sufficient capacity to carry the amount of water to which Kaser was entitled under the original appropriation. Among the issues of fact to be submitted to the jury under the pretrial order was the question of what were Louth's damages resulting from activities of the plaintiff C. E. Kaser after May 1, 1957, or of plaintiff-Kaser's agents after March 1, 1958, including damages for severance and inconvenience.
Upon the remand ordered by this court, and under the terms of the pretrial order, the cause was tried to a jury which returned its special verdict that the number of acres of Kaser's lands to which water had been beneficially applied was 147.51 acres; a general verdict in favor of Louth and against both the original plaintiff C. E.
Page 278
Kaser and interpleaded plaintiff Clifford G. Kaser, fixing Louth's damages at $600, and a further general verdict in favor of Louth and against the two Kasers on their counterclaim against Louth. The court entered its judgment according to these verdicts, and Louth moved for a new trial, alleging there was error in the assessment of the amount of his damage. The motion was denied and Louth has appealed to this court insisting the amount of the $600 award to him was erroneous in the light of the...To continue reading
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Palm v. Palm, No. 89-109
...in exercised discretion unless disapproval of a proposed decision is recorded. Sharp v. Sharp, 671 P.2d 317 (Wyo.1983); Louth v. Kaser, 405 P.2d 276 (Wyo.1965); Debruyn v. Golden Age Club of Cheyenne, 399 P.2d 390 (Wyo.1965). A recent statement of the rule is that "[a] party cannot appeal f......
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Anderson v. Foothill Industrial Bank, No. 83-80
...appeal, assert that the judgment was adverse to their entitlement, they are not the prevailing party. We said in Louth v. Kaser, Wyo., 405 P.2d 276, 278 "Appellant contends that under previous holding of this court we must assume the evidence in favor of Louth is true, leaving out of consid......
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RYN, Inc. v. Platte County Memorial Hosp. Bd. of Trustees, No. 91-270
...have received nothing (although since that question has not been presented on cross-appeal, we do not consider it. See Louth v. Kaser, 405 P.2d 276, 279 (Wyo.1965)). In any case, the amount of recovery was not outside a reasonable range, given the jury's right to disregard the expert testim......
-
Palm v. Palm, No. 89-109
...in exercised discretion unless disapproval of a proposed decision is recorded. Sharp v. Sharp, 671 P.2d 317 (Wyo.1983); Louth v. Kaser, 405 P.2d 276 (Wyo.1965); Debruyn v. Golden Age Club of Cheyenne, 399 P.2d 390 (Wyo.1965). A recent statement of the rule is that "[a] party cannot appeal f......
-
Anderson v. Foothill Industrial Bank, No. 83-80
...appeal, assert that the judgment was adverse to their entitlement, they are not the prevailing party. We said in Louth v. Kaser, Wyo., 405 P.2d 276, 278 "Appellant contends that under previous holding of this court we must assume the evidence in favor of Louth is true, leaving out of consid......
-
RYN, Inc. v. Platte County Memorial Hosp. Bd. of Trustees, No. 91-270
...have received nothing (although since that question has not been presented on cross-appeal, we do not consider it. See Louth v. Kaser, 405 P.2d 276, 279 (Wyo.1965)). In any case, the amount of recovery was not outside a reasonable range, given the jury's right to disregard the expert testim......