Peterson v. Overson, Civil 3965

• Decision Date: 06 June 1938
• Docket Number: Civil 3965
• Citation: 52 Ariz. 203,79 P.2d 958
• Parties: BRIGHAM PETERSON, Appellant v. ROSS OVERSON, Appellee
• Court: Arizona Supreme Court

79 P.2d 958

52 Ariz. 203

BRIGHAM PETERSON, Appellant v. ROSS OVERSON, Appellee

Civil No. 3965

Supreme Court of Arizona

June 6, 1938

APPEAL from a judgment of the Superior Court of the County of Apache. John P. Clark, Judge. Judgment affirmed.

Mr Dodd L. Greer, for Appellant.

Mr. M V. Gibbons, for Appellee.

OPINION

LOCKWOOD, J.

Ross Overson, hereinafter called plaintiff, brought suit against Brigham Peterson, hereinafter called defendant, praying for an injunction preventing defendant from using a certain irrigation ditch. The case was heard by the court sitting without a jury. The evidence, except as to one point, was not in dispute, and developed the following facts:

Plaintiff and defendant are respectively the owners of certain tracts of land in Apache county, both of which are irrigated. The irrigation ditch used by defendant runs over the land of plaintiff, and has done so for many years. Originally it was only about one and a half feet deep and two feet wide, but owing to the character of the soil and the fall of the ditch it has gradually eroded the land until in some places it is seven feet deep and twenty feet wide. Plaintiff has made repeated demands upon defendant that he so maintain the ditch that it would no longer erode, but, although defendant has made some effort to check the erosion, he has failed to succeed. Defendant alleged in his pleading that he was the owner of certain lands under contract of purchase from the state, upon which he could, and would, construct a ditch which would take the place of the one running over plaintiff's land, were in not for the fact that plaintiff was in possession of such land and refused to allow defendant to construct a ditch over it, and offered evidence to this effect, but the court excluded it as immaterial.

The following findings of fact and conclusions of law were made:

"Findings of Fact.

"I. That the defendant has a right to use such ditch over and upon the lands of plaintiff herein, but that the user thereof has been improper and negligent to the plaintiff's damage.

"II. That by reason of the topography of the land of plaintiff's upon which said ditch is situated, the erosive effects of said water is but natural, and unless curtailed will continue to erode plaintiff's lands until such time as a natural stream bed is formed.

"III. That the precautions taken by defendant to prevent further erosion and damage to plaintiff's land have been inadequate.

"Conclusions of Law.

"The court concludes therefore from the foregoing findings of fact, that the burden is cast upon the user, in this case, the defendant, to maintain and operate said ditch so as not to cause further damage or undue hardship upon the lands of plaintiff,"

and upon them the court rendered the following judgment:

"It is hereby ordered, adjudged and decreed:

"1. That the defendant, Brigham Peterson, be and he is hereby enjoined from the further use of said ditch in and upon the lands of plaintiff, unless the said defendant within a reasonable length of time hereafter, take adequate steps and measures to properly condition said ditch to prevent further erosion of plaintiff's lands."

Whereupon this appeal was taken.

There are two assignments of error: one, that the judgment is conditional and uncertain in its nature; and the other, that the court refused to permit defendant to introduce any evidence in regard to the lands which he had under purchase and upon which he desired to construct another ditch. We consider these errors in their order.

It is the general rule of law that a judgment must not be conditioned upon a contingency, and that an alternative and conditional judgment is wholly void, and this was especially true under...