Parke v. Boulware

• Decision Date: 12 February 1901
• Citation: 63 P. 1045,7 Idaho 490
• Parties: PARKE v. BOULWARE
• Court: Idaho Supreme Court

63 P. 1045

7 Idaho 490

PARKE v. BOULWARE

Supreme Court of Idaho

February 12, 1901

PLEADINGS-MATERIAL ALLEGATIONS.-Under section 4217 of the Revised Statutes every material allegation of the complaint not controverted by the answer must, for the purposes of the action, be taken as true.

INSUFFICIENCY OF EVIDENCE TO SUPPORT VERDICT AND FINDINGS OF FACT.-Held that the evidence is insufficient to sustain the special verdict of the jury and findings of fact made by the court.

ISSUES-INTRODUCTION OF EVIDENCE.-The rejection of evidence not material to the issues is not error. The admission of evidence not material to the issues made by the pleadings, against the objection of the adverse party, is error.

WATER RIGHT-DITCH-OWNERSHIP-NATURAL WATER CHANNEL.-The ownership of a ditch may be separate from any water right. One may adopt as a part of his ditch a depression, slough, or high-water channel, and have his right to the possession and use thereof protected the same as if such ditch had been wholly artificially made.

(Syllabus by the court.)

APPEAL from District Court, Cassia County.

Judgment set aside, and remanded, with instructions. Costs of this appeal awarded to the appellant.

Hawley & Puckett, for Appellant, cite no authorities on the points decided by the court.

John C Rogers, for Respondents, files no brief in the case.

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

OPINION

SULLIVAN, J.

This suit was brought to recover damages for the destruction of certain dams belonging to the plaintiff and to perpetually restrain the defendants from entering upon the land of the plaintiff and interfering with his dams and ditches. The answer is a denial of the material allegations of the complaint, and demands a dissolution of the temporary injunction then in force, that the complaint be dismissed, and for costs of suit. No affirmative relief is prayed for by the defendants. Certain questions were submitted to a jury, and the special verdict of the jury was adopted by the court upon the questions submitted to them, and the court supplemented the same by certain other findings of fact. Judgment and decree were entered dissolving the temporary restraining order therein issued, and directing plaintiff and defendants to put certain boxes and headgates upon all points in Cow creek where they, or either of them, proposed to divert water from said creek, and enjoining the plaintiff from placing solid dams in the channel of said creek, or in any manner interfering with the flow of the waters therein belonging to either of the defendants. And plaintiff is also enjoined from diverting any of the waters to which the defendants are entitled from the channel of said Cow creek for any purpose whatever, and from conducting said water into Cassia creek. The plaintiff is also adjudged to pay the costs of this suit. This appeal is from the judgment.

The first error relied upon is that question numbered 5 submitted to and answered by the jury, and adopted by the court as one of its findings of fact, is not authorized or warranted by the evidence. Said question and finding is as follows: "Was it necessary for plaintiff to have dams in the channel called 'Cow Creek' to properly irrigate his land? Answer. No; he should have head gates." It is contended that that question should not have been submitted to the jury, for the reason that plaintiff alleged in his complaint that it was necessary to put dams in said creek in order to get water on plaintiff's land; that the answer does not deny that allegation, and hence must be considered and taken as true, under the provisions of section 4217 of the Revised Statutes, which declares that every material allegation of the complaint not controverted by the answers must, for the purpose of the action, be taken as true. And it is also contended that the evidence shows that dams were necessary. On an examination of the evidence we find that the witness Parke testified that, in order to throw the water out of said channel onto his land, it was necessary to put dams therein. Witness Charles Parke testified as follows: "In order to get water out onto Parke's meadow, it was necessary to build dams in these dry channels to throw it out." Witness E. Homer testified, "Mr. Parke cannot use his water on his meadow without putting dams in his ditch, and the dams are necessary for the purpose of watering his meadow," and also that the water would not run on his (plaintiff's) meadow, except in very high water, without dams. Witness D. H. Homer testified to the same effect. Defendant Boulware testified that he removed the dams from the place where he (plaintiff) throws the water into his lateral ditches, and he also testified that he had removed plaintiff's dams three times, and that thereafter the dams would have to be repaired before plaintiff could get water through his ditches. H. Caldwell, witness for defendants, testified that plaintiff could not put water out in his meadow without the use of dams, and in the ordinary season of the year that dams were necessary to force water out through the laterals onto plaintiff's meadow. A. V. Caldwell, witness for the defendants, testified as follows: "I don't think Mr. Parke could get water out of Cow creek without putting dams in it." John Dennis, a witness for defendants, testified as follows: "Mr. Parke could not get water out onto his meadow without putting in these dams, and they were necessary in order to irrigate his meadow, and without these dams his ditches and water rights would be useless." The evidence is all one way on the point under consideration. There is no conflict. It is all to the effect that such dams are necessary. The special findings of the jury and court that such dams are not necessary have no evidence whatever to support it, and the allegation of the complaint that said dams are necessary is admitted by the answer. It was error to find that it was not necessary for plaintiff to have dams in the channel called "Cow Creek" to properly irrigate his land.

It is contended that the seventh finding of fact is not authorized or warranted by the evidence, and that it flatly contradicts the first finding of fact. By the first finding the jury found, and the court adopted such finding as its own, that the plaintiff did construct a ditch from Cassia creek, which is called "Parke's Ditch," some time in 1879 and by the seventh question submitted to the jury it is found that said ditch was not an artificial channel, but that the same was a natural channel. Witness King testified that he was acquainted with what is commonly called the slough on the Parke ranch; that it was only a high-water channel previous to 1879, and since then it has been used as a ditch, and that between 1879 and 1885 it was used continuously as an irrigating ditch; that witness and a man by name of Chase in 1879 cut a channel from Cassia creek to said slough, and turned water into it. Witnesses Charles Parke,...