Mogollon Gold & Copper Co. v. Stout
| Decision Date | 28 August 1907 |
| Parties | MOGOLLON GOLD & COPPER CO. v. STOUT. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
In a suit for damages, where an injunction is also asked, if the suit is primarily for the injunction, and the right to damages is merely incidental to and dependent upon plaintiff's right to the injunction, the court may without the intervention of a jury, assess the damages already sustained; but, if the action is brought primarily for the recovery of a money judgment, it is triable by a jury, notwithstanding that the plaintiff also asks for an injunction against the further violation of his rights.
[Ed Note.-For cases in point, see Cent. Dig. vol. 31, Jury, §§ 35-83.]
In the case at bar the court committed no error in overruling defendant's motion for a continuance, as the granting or refusing of a continuance in any case rests in the sound discretion of the court; and as in this cause the case was first set for trial for the month of June, 1905, and on July 6, 1905, was reset in open court for trial for December 1905, there was no abuse of discretion in the refusal of the court to grant a further continuance, and to begin the trial of the case December 13, 1905.
[Ed Note.-For cases in point, see Cent. Dig. vol. 10, Continuance, §§ 6, 7.]
Assignments of error as to the admissibility or nonadmissibility of evidence, which are in general terms and do not point out the particular question and answers objected to, will not be considered by this court.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3010.]
When the injured party finds that a wrong is being done him, he should use all reasonable means to arrest the loss, and when a reasonable and bona fide attempt is made to reduce the damage, even if by such attempts the loss is increased, it does not relieve the wrongdoer from a suit for the full recovery of the damages claimed.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, §§ 119-132.]
In a suit for damages for the destruction of growing fruit trees and grapevines, it is competent to prove the damages such as are here claimed, by showing the value of the trees and vines destroyed, or by showing the value of the real estate with the trees and vines growing upon it and its depreciation by reason of their loss, or in both ways.
Error to District Court, Socorro County; before Justice Frank W. Parker.
Action by the Mogollon Gold & Copper Company against John W. Stout. Judgment for defendant, and plaintiff brings error. Amended and affirmed.
The complaint in this case discloses that in the year 1883 the defendant in error settled on, and has since resided upon, a certain tract of land situated in the county of Socorro, in this territory, containing a trifle over 100 acres, and that in April, 1894, the United States patented the same to him; that immediately upon his settlement upon the land in 1883 defendant in error took and appropriated one cubic foot of water per second from Mineral creek, when that amount of water was flowing in said creek, by building a certain irrigation ditch about 1,800 feet long and 20 inches in width, extending from a point on Mineral creek above lands of defendant in error down to and across his lands; that the water so appropriated was used for irrigating his lands, vineyard, fruit trees, plants, and vegetables, and for watering his live stock, and for domestic purposes; that his lands were irrigated from five or six times during each season; that at the time of his appropriation the water of Mineral creek was pure, and suitable for the purposes for which it was appropriated; that in the year 1893, plaintiff in error erected a large quartz or stamp mill, with a crushing capacity of over 100 tons for every 24 hours, some distance above the head of the irrigation ditch, and so near Mineral creek that the tailings from the mill ran into Mineral creek and polluted the waters of that stream with mineral poison and other substances highly injurious to vegetable and animal life; that the tailings and other deleterious substances were carried by the waters of the creek into the irrigation ditch of defendant in error and upon and over his lands; that by reason of the pollution of the water the same was rendered unfit for the uses and purposes for which it had been appropriated, and that by reason of the tailings running into the irrigation ditch it has filled up, and the lands thereunder have been permanently injured by the deposit thereon of the tailings and the mineral poisons; that the alfalfa, a vineyard, trees, plants, and vegetables of defendant in error have ceased to grow and be productive; and that he has wholly lost his crops, and the alfalfa, vineyard, trees, plants, and vegetables have been poisoned, dried up, and wholly destroyed, and defendant in error has been deprived of the use of said water for his stock and for domestic purposes. Damages were asked in the sum of $2,000. Defendant in error also asked for an injunction, and that he be decreed to have prior right to the use of the waters of Mineral creek, to the full extent of his prior appropriation, and for general relief. Issues were finally joined, and the cause was set for trial, at the next term of court. Motion was made to strike the cause from the trial docket, which was denied. Motion for a continuance was made, and was likewise denied, and the case was finally heard by a jury, which returned a verdict in favor of plaintiff below, defendant in error herein, for the sum of $2,000 damages. At the suggestion of the court $650 of the verdict was remitted, and judgment was entered for the sum of $1,350. Motion for new trial was argued and overruled, and a writ of error was sued out.
McMillen & Raynolds and Dougherty & Griffith, for plaintiff in error.
James G. Fitch and W. H. Winter, for defendant in error.
On the several assignments of error we will consider those that we deem pertinent to the proper disposition of this case. It will not be necessary to take them up severally, as those which relate to the measure of damages can properly be considered together.
1. The first alleged error to be considered is that the court below erred in overruling the motion of defendant to strike the cause from the jury trial docket and in submitting the cause to trial by jury. The claim of plaintiff in error is based upon the well-known principle that, if jurisdiction attaches, a court of equity will go on and do complete justice, although in its progress it may decree on matter which was cognizable at law, and that, as the complaint in this case set up facts which called for both legal and equitable relief, when the court took jurisdiction for the purpose of administering equitable relief-that is, issuing the injunction prayed for-it took jurisdiction of the case for all purposes, and would itself decide the question of fact involved in the case, without the intervention of a jury. Our Code of Civil Procedure authorizes the uniting of both legal and equitable causes of action in the same complaint, where they arise out of the same transaction or transactions, connected with the same subject of action. Subsection 33, § 2685, Comp. Laws 1897. Even a cursory examination of the statement of facts which precedes this opinion will show that the legal and equitable causes of action stated in the complaint arise out of the same transaction. Indeed, it is nowhere contended that the complaint improperly joined causes of action. The complaint sets up what under the common-law rules would have been a good declaration in trespass on the case, and also asks for two remedies, to wit: (1) A judgment for the sum of $2,000; and (2) that the plaintiff be decreed to have a prior right to the use of the waters of Mineral creek, and that the copper company be enjoined from polluting the waters of said creek. The record also discloses that a verdict was returned by the jury which tried the cause in December, 1905, while nothing was done about securing the restraining order until March, 1906, more than two months after the jury had passed upon the cause. Indeed, the record does not show that a permanent injunction has ever been granted in the case.
By section 1868 of the Revised Statutes of the United States the district courts of this and other territories possess chancery as well as common-law jurisdiction, and at one time it was a serious question as to whether a territorial Legislature had the right to adopt a Code of Civil Procedure; but on April 7, 1874, this right was given by act of Congress, but attached to it is the proviso that by the enactment of a Code no person should be deprived of the right of trial by jury in cases cognizable at common law. There is no doubt, as stated above, but that the complaint in this case, down to the prayer for relief, sets up a state of facts which was "cognizable at common law," and which entitled the plaintiff to the right of a trial by jury; and under the acts of Congress just above referred to the Legislature could not, even if it had been so disposed, which we do not even for a moment intimate, have taken away the right. The mere fact that the defendant in error united in one complaint the necessary allegations and prayers for legal and equitable relief does not deprive him of his right to a jury trial on the legal issues; and this has been the holding, and we think properly, in nearly all of the Code states. Pomeroy's Code Remedies, §§ 59, 86; Hill v Smith, 27 Cal. 476; Potter v. Froment, 47 Cal. 165; Hudson v. Caryl, 44 N.Y. 553; Sternberger v. McGovern, 56 N.Y. 12; McPherson v. Featherstone, 37 Wis. 632; Hughes v. Dunlap, 91 Cal. 385, 27 P. 642. And the highest federal court has held likewise in a...
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