Parke v. Boulware

• Decision Date: 01 July 1903
• Citation: 9 Idaho 225,73 P. 19
• Parties: PARKE v. BOULWARE
• Court: Idaho Supreme Court

73 P. 19

9 Idaho 225

PARKE v. BOULWARE

Supreme Court of Idaho

July 1, 1903

CONFLICT OF EVIDENCE-FINDINGS OF FACT-AMENDMENT OF PLEADINGS-STARE DECISIS.

1. Where there is a substantial conflict in the evidence the findings of the trial court will not be disturbed.

2. When a judgment has been reversed and the cause remanded for a new trial, the allowance of amendments to the pleadings is in the sound discretion of the court.

3. The doctrine or rule of stare decisis applies when a decision of a court has been recognized as a law of property, and forms a definite basis for contracts and business transactions. Said rule has no application in this case.

(Syllabus by the court.)

APPEAL from District Court of Cassia County. Honorable Lyttleton Price, Judge.

Action to recover damages for destruction of dams and for an injunction. Judgment for defendants. Affirmed.

Judgment affirmed and costs of this appeal awarded to respondents.

Hawley & Puckett, for Appellant.

The proposition that we wish to urge is, that the court erred in permitting the defendants to file an amended answer herein and upon which this cause was tried. In the first place, as we have before stated, this case has been tried in the lower court and appealed to this court and reversed and sent back for a new trial, and we contend that it was error for the court when this case came up for trial to permit the defendants to file an amended answer for the reasons set forth, among others, in our motion to strike same from the files, and it is too late after a cause has been once reversed by this court to propose and file an amended answer. (Palmer et al. v. Utah Ry. Co., 2 Idaho 350 (382) 16 P. 553.) We are aware of the fact that the decisions generally hold that amendments to pleadings rest largely in the discretion of the trial court, and the ruling thereon by the trial court will not be disturbed on appeal except it appear that the exercise of such discretion has deprived the complainant of some substantial right, but we contend that such amendments should not be allowed after a new trial has been granted. (Bliss on Code Pleading, sec. 430; Spanagel v. Reay, 47 Cal. 608.) And especially so where amendments filed deny matters before admitted by the pleadings to be true. (Harrison's Admrs. v Hastings, 28 Mo. 346.) And it will be seen by an examination of the amended answer filed herein, as pointed out by our motion to dismiss the same, that the allegations admitted in the original answer were denied in the amended answer, and, in fact, a new cause of action set up therein. We further contend in this case that the decision of this court heretofore made upon the former appeal is the law of this case. It was decided upon the former appeal, to wit, Parke v. Boulware, 7 Idaho 490, 63 P. 1045, that the ownership of a ditch may be separate from any water right, and further, that anyone may adopt as part of his ditch a depression, slough, or high-water channel, and that his right to the possession and uses thereof is protected the same as if such ditch had been wholly artificial. So that being the law of the case, we contend that there was nothing to retry upon the second hearing. (1 Kent's Commentaries, 475, 476; Giblin v. Jordan, 6 Cal. 416; Pioche v. Paul, 22 Cal. 109; Vassault v. Austin, 36 Cal. 696; Smith v. McDonald, 42 Cal. 484; Lindsay v. Lindsay, 47 Ind. 286; Day v. Munson, 14 Ohio St. 488; Boone v. Bowers, 40 Miss. 256, 64 Am. Dec. 159; Emerson v. Atwater, 7 Mich. 23; Reed v. Owenby, 44 Mo. 206; Kneeland v. Milwaukee, 15 Wis. 691; Willis v. Owen, 43 Tex. 48.)

W. L. Maginnis, for Respondents.

The first error assigned is the overruling of plaintiff's motion to strike out amended answer in the case and permitting said answer to stand. The appellant in arguing this case tries to make it appear that the amended answer changes the issues in the case so as to be an entirely new case. The appellant cites a long line of cases to support the doctrine of stare decisis, but from a reading of them we fail to see their application to this case. Each and everyone of them are cases in which the validity of the law is in question upon which land titles are based, and the courts in passing upon them chose the lesser of the evils and say the law will be permitted to stand, although bad, rather than set it aside and suffer the consequences of the uncertainty and the violent and sudden change, and as is said in People ex rel. Attorney General v. Alturas County, 6 Idaho 418, 55 P. 1067, cited by appellant: "The fifth, sixth and seventh errors assigned are the admission by the court of certain evidence alleged by the appellant to be improper and incompetent, and the same should have been refused. Which cannot avail the appellant anything in this case, even though it be improper, which we deny. Because the rule of law in this class of cases is that the admission of incompetent evidence is not reversible error." (King v. Pony Gold Min. Co., 28 Mont. 74, 72 P. 309, and cases cited at the top of page 316; Merchants' Nat. Bank v. Greenhood, 16 Mont. 395, 41 P. 250, 851.) "A decision on a question of fact will not be reviewed where the record does not purport to contain all of the evidence." (Bradford v. Cline, 12 Okla. 339, 72 P. 369.) The rule of law is that if the testimony is conflicting, but tends to sustain the decision, the appellate court will not disturb it on appeal. (Wicks v. Carlysle, 12 Okla. 337, 72 P. 377.)

SULLIVAN, C. J. Stockslager, J., took no part in the decision of this case. Ailshie, J., concurs.

OPINION

The facts are stated in the opinion.

SULLIVAN, C. J.--

This action was brought to recover $ 500 damages for an alleged wrongful destruction of certain dams alleged to have been situated in appellant's irrigating ditch, by means of which appellant raised water out of his said ditch onto his land for irrigating purposes, and also for a perpetual injunction restraining respondent from interfering with said dams and ditches or the flow of the water therein. The defendants (who are respondents here) answered and denied that appellant or his predecessors in interest constructed the water channel claimed by him as a ditch, and averred that the same is one of the natural channels of Cassia creek through which water has, from time beyond the memory of man, ever flowed, and that said channel was known as the north fork of Cassia creek; that said channel had been used by respondents and their predecessors in interest for more than twenty years to convey the water appropriated by them from Cassia creek to and upon their lands, and averred that the use of said channel by appellant has been in common with that of respondents, and denied that they had cut away and removed said dams or that they threatened to remove the same.

This case was before this court on appeal, at its January, 1901, term, and the decision is reported in 7 Idaho 490, 63 P. 1045. On that appeal the cause was remanded with instructions to grant a new trial. The new trial was granted and the respondents were permitted to amend their answer. Plaintiff waived his claim for damages. The cause was tried by the court without a jury. Judgment was entered for defendants, dissolving the temporary injunction and dismissing the case. A motion for a new trial was denied, and this appeal is from that order.

The first error assigned and presented in the brief of counsel for appellant is the insufficiency of the evidence to sustain certain findings of fact. It is contended that the first, second, third, fourth, fifth, sixth, seventh, eighth and ninth findings of fact are not supported by the evidence. Said findings are in effect as follows:

That Cassia creek is a stream of water flowing through a certain portion of Cassia county, Idaho and empties into Raft river in said county and state; that said Cassia creek divides into several branches or channels on its course toward said river which division of the stream into such channels occurs above and up said stream from the lands of the parties to this action; that in high water the said stream flows through some or all of the said channels; that the appellant owns certain farming land, a short distance down the stream from the point where one of these channels (being the one involved herein), and sometimes called north fork, sometimes called Cow creek, and sometimes having no name to designate it, finds its head; that to irrigate the said land the appellant and his predecessors have, for years past, maintained a dam in Cassia creek immediately below the junction of said so-called Cow creek channel with Cassia creek and a ditch about five rods long leading from Cassia creek above said dam to the said so-called Cow creek channel, by which means he has diverted the water at seasons when the same would not naturally flow therein into...