Mau v. Stoner

• Decision Date: 30 January 1902
• Citation: 10 Wyo. 125,67 P. 618
• Parties: MAU v. STONER
• Court: Wyoming Supreme Court

67 P. 618

10 Wyo. 125

MAU v. STONER

Supreme Court of Wyoming

January 30, 1902

ERROR to the District Court, Uinta County, HON. DAVID H. CRAIG Judge.

Frank A. Mau brought suit against John W. Stoner for damages for the alleged wrongful diversion of water and for an injunction. A demurrer to the petition was overruled, and defendant answered denying all the allegations of the petition except plaintiff's ownership of the land alleged to belong to him upon which the damage was alleged to have resulted. After plaintiff had produced part of his evidence the court, on motion of defendant, directed a verdict for the defendant. Judgment was rendered accordingly, and the plaintiff prosecuted error. The material facts are further stated in the opinion.

Reversed.

Christensen & Ryckman, for plaintiff in error. P. L. Williams and J. A Hellenthal, of counsel.

Defendant could not avail himself of the contract because it was not pleaded, and had it been pleaded it was not admissible on the plaintiff's cross-examination. The plaintiff had not pleaded the instrument and it was no part of his case. He admits signing it, but claims, and was prepared to prove that the defendant failed to perform its conditions on his part, and that he, therefore, had acquired no rights thereunder. (2 Bl., 154.) Plaintiff was not asked any questions about the contract on his direct examination. The English rule is that a witness who is sworn and gives some evidence, however formal and unimportant, may be cross-examined in relation to all matters involved in the issue. (2 Phil. Ev., 896-911; 3 Jones Ev., 820; 1 Green. Ev Secs. 445-448; 1 Rice Ev., 586.) The American rule is stricter. Under this rule the cross-examination is limited to an inquiry as to facts and circumstances connected with the matter stated in his direct examination and applies to parties as well as to other witnesses. (Underhill Ev., 481; 3 Jones Ev., 445; 1 Whart. Ev., 529; Abb. Civ. Tr. Br., 160; Wills v. Russell, 100 U.S. 621; Elenaker v. Buckley, 16 S. & R., 77; Floyd v. Bovard, 6 W. & S., 75; Bell v. Prewett, 62 Ill. 362; Rush v. French, 25 P. 861.)

The contract was new matter and must have been pleaded. (Stoddard v. Onondaga, 12 Barb., 576; Piere v. Finch, 29 id., 170; Warren v. Baldwin, 51 Wis. 450; Gill v. Rice, 13 id., 549; Waddle v. Morrill, 26 id., 611; Fanning v. Ins. Co., 37 O. St., 344; McKyring v. Bull, 16 N.Y. 297; Piercy v. Sabin, 10 Cal. 22; Coles v. Soulsby, 21 id., 50; Lentz v. Victor, 17 id., 272; Moss v. Shear, 30 id., 468; Pico v. Colimas, 32 id., 578; Sherman v. Buic, id., 242; Alford v. Barnum, 45 id., 482; Clark v. Huber, 25 id., 597; Ry. Co. v. Washburn, 5 Neb., 117; 2 Estee Pl., 3691, 3694, 3686; 1 Boone Pl., 72-73; Powers v. Armstrong, 36 O. St., 357; Iba v. Cent. Asso'n., 5 Wyo., 355; Bliss Code Pl., 352, 324; Gould Pl., 303; Pomeroy Rem., 691; 1 Ency. Pl. & Pr., 830; Mauldin v. Ball (Mont.), 1 P. 409.)

A parol license must be pleaded. (Alvord v. Barnum, 45 Cal. 482; Snowden v. Wilas, 19 Ind. 11; Chase v. Long, 44 id., 427; Hetfield v. R. R. Co., 5 Dutch., 571; Beaty v. Swarthout, 32 Barb., 293; Clifford v. Dam, 44 N.Y.S.Ct. 391; Lentz v. Victor, 17 Cal. 274; Columbus Co. v. Dayton Co., 18 Cal. 615; Johnson v. Cuddington, 35 Ind. 43; Carter v. Wallace, 2 Tex., 206; Klais v. Pulford, 36 Wis. 587; Bliss Code Pl., 364.) An estoppel cannot be proved under general denial. (Pomeroy Rem., 712; Troyer v. Dyar, 102 Ind. 396; Aurora v. West, 7 Wall., 82; Stephen Pl., 353; 6 Wait's A. & D., 714; Gray v. Pingry, 17 Vt. 419; Parliman v. Young, 4 N. W., 139; Eikenberry v. Edwards, 24 id., 570; Delphi v. Startzman, 3 N. E., 937; DeVotie v. McGerr, 24 P. 923; Gainor v. Clements, 26 id., 324; Ins. Co. v. Johnson, 27 id., 100; 3 Bl., 308; 1 Ency. Pl. & Pr., 851.)

Broadly stated, the law is, neither a non-suit, nor a direction of a verdict for the defendant, nor a demurrer to evidence is proper before the plaintiff has closed his case. (Mulhern v. R. R. Co., 2 Wyo., 465; Walker v. Supple, 54 Ga. 178; Bastian v. Phila., 180 Pa. 227; Nixon v. Brown, 4 Blackf., 158; Stern v. Frommer, 30 N.Y.S. 1067; Miller v. House, 63 Ia. 82; 18 N. W., 708; Metzgar v. Herman, 12 N. Y. Wk. Dig., 181; Hinchman v. Weeks, 85 Mich. 535; 48 N. W., 790; Morley v. Liverpool & Co., 85 Mich. 210; 48 N. W., 502; Field v. Clippert, 78 Mich. 26; 43 N. W., 1084; 2 Thomp. Trials, Sec. 2245; 6 Encyc. Pl. & Pr., 698.)

It is only upon an undisputed state of facts that the court may render the judgment or direct the verdict which the law requires without the aid or advice of the jury. (Richardson v. Boston, 19 How., 263; Railroad Co. v. Fraloff, 100 U.S. 27; Parks v. Ross, 11 How., 373; Schuchardt v. Allen, 1 Wall., 370; Elliott v. Ry. Co., 150 U.S. 245; Maas v. White, 37 Mich. 130; Ry. Co. v. Converse, 139 U.S. 469; Lockhart v. Wills, 50 P. 319; Kelley v. Ryes, 29 P. 144; O'Brian v. Miller, 25 Am. St. Rp., 320; Dickson v. Bristol, &c., Bk., 66 Am. St. Rp., 193; Anthony v. Wheeler, 17 Am. St. Rp., 281; Whitney, &c., v. Richmond, 37 Am. St., 767; Fox v. Campbell, 30 P. 479; Hickman v. Cruise, 2 Am. St. Rp., 256; Claflin v. Rosenberg, 42 Mo. 439; Carter v. Olive Oil Co., 27 Am. St., 815; Lowe v. Salt Lake City, 57 Am. St., 708; Union Stock, &c., Co. v. Canoyer, 41 Am. St., 738.)

If there is a slight doubt about the facts, no matter how slight, the court should not settle it, but leave it to the jury. (Dwyer v. St. Louis, &c., Co., 52 F. 87; Hanger v. Chicago, &c., Co., 3 S. D., 394; Carter v. Chesapeake, &c., Co., 88 Va. 389; Fitzwater v. Stout, 16 Pa. St., 22; 6 Ency. Pl. & Pr., 683-686; Hickman v. Jones, 9 Wall., 197.)

Hamm & Arnold and Beard & Ausherman, for defendant in error.

There was no error in directing a verdict for defendant, for the reason that the petition did not state facts sufficient to constitute a cause of action. The fact that demurrer had been overruled did not prevent the direction of a verdict. (Brown v. Cunningham, 48 N. W., 1042; Marriott v. Clise, 12 Colo. 561; Carver v. Lind, 14 P. 697; Hall v. Linn (Colo.), 5 Pac., 641; Wood v. Nicolson (Kan.), 23 P. 587; Ball v. LaClair (Neb.), 22 N. W., 215; Bank v. Bank, 7 N. Y., 459; Donohue v. Hendrix (Neb.), 13 N. W., 215; McDougal v. McGuire, 35 Cal. 281; Trimble v. Doty, 16 O. St., 119.) The objection to the petition was not waived by saving an exception and answering. (Cases above cited; R. S., Sec. 3537.)

It may be that in stating his cause of action the plaintiff might have alleged that he was the owner of the ditch in question, and that he had procured from the State the right to the use of a certain amount of water transported therein without stating the acts done by him tending to prove such ownership and right; but he having elected to state the acts done by him which constitute or establish such ownership and right, without alleging either in terms, he must then allege all of the facts necessary to constitute such ownership and right.

To obtain a right to the use of water and to construct irrigating works under the law in force at the time stated (1893-4) a number of things were required: (1) An application to be filed with the State Engineer; (2) endorsement of State Engineer; (3) map to be furnished within six months; (4) proof of completion of work to the satisfaction of Board of Control; (5) a certificate from the Board of Control, the only competent evidence of such water right.

Plaintiff's proof could not be greater than his pleading, and if we regard every fact alleged on this point as fully proven, he would still be short at least three material elements to secure a water right, viz.: The furnishing of a map and proof of completion. The State Engineer could not grant an appropriation of water. That must be done by the board. (Secs. 35 and 36, Chap. 8, Session Laws 1890-1.)

"Under a general denial of the allegations in the complaint, a defendant may introduce any evidence which goes to controvert the facts which the plaintiff is bound to establish in order to sustain his action." (1 Ency. Pl. & Pr., 817, and cases cited.) Counsel for plaintiff has cited numerous cases to attempt to show that this contract is new matter, but has failed to cite any cases of consequence for the purpose of defining new matter. New matter is defined in some of the cases cited by counsel, but the definitions do not bear out his contention. On the other hand, these definitions all go to prove that the evidence here given was not new matter, but was legal evidence tending to disprove the allegations of the petition, and hence properly admitted. (1 Boone Code Pl., Sec. 66; Bliss Code Pl., Secs. 328-339; Iba. v. Central Asso., 5 Wyo., 355; 40 P. 527; Mauldin v. Ball, 1 P. 409.)

There is another branch to this case. The action was commenced by the plaintiff, claiming to be the owner of a certain water ditch and water right, and alleging that the defendant unlawfully diverted the water from said ditch, and praying for an injunction and damages. The allegations of the petition are denied, thus raising two issues, one the main or equitable issue to be tried by the court and the other an issue at law for damages. The two issues were tried together, and the court found for the defendant on the equitable issue and dissolved the temporary injunction.

This finding against the plaintiff on the main or equitable issue necessarily disposed of his case for damages. The ruling of the court upon the equitable issue and the finding of the court upon that issue and dissolving the injunction was not excepted to or made part of the plaintiff's motion for a new trial; this ruling not being questioned in plaintiff's motion for a new trial, became final as to the main or equitable issue in the case, and, therefore could not be raised on appeal. No finding of facts nor...