Stalling v. Ferrin

• Court: Supreme Court of Utah
• Writing for the Court: ANDERSON, J.
• Citation: 27 P. 686,7 Utah 477
• Parties: CHARLES A. STALLING, RESPONDENT, v. JOSIAH L. FERRIN, APPELLANT
• Decision Date: 12 September 1891

27 P. 686

7 Utah 477

CHARLES A. STALLING, RESPONDENT,
v.
JOSIAH L. FERRIN, APPELLANT

Supreme Court of Utah

September 12, 1891

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Messrs. Miller and Maginnis, for the appellant.

Messrs. Kimball and Allison, for the respondent.

ANDERSON, J. ZANE, C. J., and BLACKBURN, J., concurred.

OPINION [27 P. 687]

[7 Utah 478] ANDERSON, J.

This is an action brought by plaintiff to recover damages for an alleged trespass by defendants in cutting a water-ditch across plaintiff's land, and to restrain the defendants from maintaining the ditch, and continuing the alleged trespass. The cause was referred to a referee to try all the issues in the action, both of law and of fact, and report his conclusions of law and judgment thereon. The referee heard the case, and made his report, in which he found the issues in favor of the plaintiff and against the defendant Josiah L. Ferrin, and that plaintiff was entitled to a judgment of six cents damages, and to a perpetual injunction against said defendant, restraining him from maintaining the ditch across the lands of plaintiff, and from conducting water across said land. The referee further reported that there was no cause of action against the defendant Josiah M. Ferrin. The district court confirmed the report of the referee, and entered judgment accordingly for damages in favor of plaintiff, and forever enjoining the defendant Josiah L. Ferrin from maintaining a water-ditch across the lands of plaintiff. There was a motion for a new trial by the defendant Josiah L. Ferrin, which was overruled, and he brings this appeal from the order overruling the motion for a new trial and from the judgment.

It is contended by counsel for appellant that the findings of facts are unsupported by the evidence. We have carefully read the evidence, which was mostly the oral testimony of witnesses given at the hearing, and is as conflicting as is usual in this class of cases. There being a substantial conflict in the testimony, it is a well-settled rule of this court that it will not set aside the findings as unsupported by the evidence. But counsel for appellant contend that the findings of fact do not support the conclusions of law and judgment. The referee found [7 Utah 479] that the defendant Josiah M. Ferrin, about April 1, 1880, and prior to the commencement of...