Mahaffey v. McNicoll

• Citation: 42 Idaho 108,244 P. 401
• Parties: STEPHEN A. MAHAFFEY, Jr., Appellant, v. MURDOCK M. MCNICOLL, CLAIRE MCNICOLL, FRED PATTEE, JOS. PATTEE, GEO. H. D. LYNCH and MARTIN CURRAN, Respondents
• Decision Date: 04 January 1926
• Court: United States State Supreme Court of Idaho

244 P. 401

42 Idaho 108

STEPHEN A. MAHAFFEY, Jr., Appellant, v. MURDOCK M. MCNICOLL, CLAIRE MCNICOLL, FRED PATTEE, JOS. PATTEE, GEO. H. D. LYNCH and MARTIN CURRAN, Respondents

Supreme Court of Idaho

January 4, 1926

WATER RIGHTS-TRIAL-FINDINGS-EVIDENCE.

1. It is not reversible error to fail to make a finding on an admission in a pleading where such a finding would not justify greater relief than that awarded by the decree.

2. An appellate court will not examine the evidence to determine in whose favor it preponderates when the trial judge by stipulation makes his decision not only from a transcript of evidence taken before his predecessor, but on a consideration of all the evidence submitted in the cause including evidence taken before the judge who decided the case and after an authorized examination of the premises.

3. A finding not sustained by the evidence should be modified to accord with the evidence.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.

Suit to adjudicate water rights. Decree modified and affirmed.

Decree affirmed. Costs to appellant. Petition for rehearing denied.

John H Padgham and Richards & Haga, for Appellant.

Where the trial judge who made the findings decided the case upon a typewritten transcript or upon depositions and documentary evidence and did not see the witnesses, the rule requiring affirmance of a decision based upon conflicting evidence does not apply and the supreme court will examine the evidence anew and make its own determination according to the preponderance of such evidence. (Roby v. Roby, 10 Idaho 139, 77 P. 213; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938; Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Village of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 945, 17 L. R. A., N. S., 497; Jones v Marshall, 24 Idaho 678, 135 P. 841.)

E. W Whitcomb and L. E. Glennon, for Respondents.

"Where a case has been heard and determined entirely on depositions the supreme court will pass on the weight and preponderance of the evidence." (Roby v. Roby, 10 Idaho 139, 77 P. 213; Ainslie v. Idaho World Printing Co., 1 Idaho 641; Spofford v. Spofford, 18 Idaho 115, 108 P. 1054.)

This rule, however, does not apply where witnesses have been called and testified, even though the greater portion of the evidence may be in the form of depositions or testimony taken before another judge. (Jones v. Marshall, 24 Idaho 678, 135 P. 841.)

WM. E. LEE, J. William A. Lee, C. J., and Budge, Givens and Taylor, JJ., concur.

OPINION

WM. E. LEE, J.

This suit was instituted in the district court for Lemhi county to determine the rights of the parties in and to the waters of Pattee Creek. Appellant Mahaffey is the owner of a farm comprising all but a small part of what is known as the old Sharkey ranch. Respondents McNicoll and wife were formerly the owners of the land. In 1918 they conveyed it to one Whitman, who conveyed it to appellant. When McNicoll became the owner of the Sharkey ranch a portion thereof was irrigated with water from Pattee Creek; and, prior to the conveyance to Whitman, McNicoll changed the use of a portion of the water of Pattee Creek to lands which he did not convey, and constructed a ditch from Lemhi River for the purpose of substituting water from Lemhi River in place of Pattee Creek water so withdrawn. The cause was tried before Judge Cowen and submitted to him for decision. Before a decision was made Judge Cowen resigned and, on stipulation of the parties, it was agreed that Judge Adair, successor of Judge Cowen, should decide the cause on a transcript of the evidence taken before Judge Cowen and such additional evidence as might be admitted. It was further stipulated that Judge Adair make a personal examination of the ditches and premises involved in the suit. Thereupon Judge Adair admitted additional evidence and made an examination of the Lemhi River ditch. In its findings the court determined that the original appropriation of the waters of Pattee Creek for the Sharkey ranch was 200 inches, with a priority of June 1, 1871; that by the conveyance from McNicoll to Whitman, McNicoll "reserved" 80.2 inches of the water of Pattee Creek and had theretofore transferred the use of an additional 26 inches of water from Pattee Creek to lands retained by him, thus awarding McNicoll 106.2 inches and appellant 93.8 inches of the original appropriation. Findings were also made with respect to the rights of other parties, which, except as to respondents Fred and Joseph Pattee, it is not necessary to notice. A decree was made and entered in accordance with the findings.

Appellant contends that the court should have found that one and three-fourths inches of water per acre were required for the irrigation of about 200 acres of his land in that respondents admitted such an allegation of the complaint. A finding as to the extent and requirements of appellant's irrigable land was necessary and appellant was entitled to a finding according to the admission. Because of the fact that all of the water of Pattee Creek is used during the irrigation season, as between these parties, the more important issue is not the quantity of water reasonably necessary for the irrigation of appellant's land, but is the quantity of the water of Pattee Creek to which the parties are respectively entitled. The court would not, therefore, have been justified in awarding appellant, as against the other parties, any more of the water of Pattee Creek solely because it was necessary for the irrigation of his land. Respondents denied that more than 200 inches of water had ever been used in the irrigation of the Sharkey ranch, and the evidence supports the finding that 200 inches of the water of Pattee Creek had been diverted to and used thereon. Since, as against the other parties to this suit, appellant was not entitled to have decreed to him more of the water of Pattee Creek than had theretofore been diverted to and used on the land now owned by him, the failure of the court to find the quantity of appellant's irrigable land and the quantity of water proper and necessary for its irrigation, according to the admission in the answer, is not reversible error.

It is suggested by appellant that this court is in as favorable a position to judge of the credibility of the witnesses and the weight to be given to the evidence as was the trial judge and that it is our duty to examine the evidence and make our own determination therefrom as though the cause had been tried before this court. He predicates this suggestion on the premise that Judge Adair, who made the findings, decided the case solely on a typewritten transcript of the evidence taken before Judge Cowen. As a matter of fact, the court made its findings not only on the evidence taken before Judge Cowen but on a...