Stalling v. Ferrin

• Decision Date: 12 September 1891
• Court: Utah Supreme Court
• Parties: CHARLES A. STALLING, RESPONDENT, v. JOSIAH L. FERRIN, APPELLANT

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

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 that the defendant Josiah M Ferrin, about April 1, 1880, and prior to the commencement of this action, sold his land adjoining the plaintiff's land on the south, together with the ditch situated on plaintiff's land, and the water-right connected therewith, to the defendant Josiah L. Ferrin for a valuable consideration, and that Josiah L. Ferrin went into possession of the same, but that the deed of conveyance was not made until the day of trial, after plaintiff had closed his case. The thirteenth and fourteenth findings of fact are as follows: "Thirteenth. That the defendants, nor either of them, nor those of whom they purchased, have had possession or use of said water-ditch hereinbefore referred to for a period of twenty years, or for any other period of time, except that the defendant Josiah M. Ferrin used said ditch some time between 1864 and 1867, and again some time between 1871 and 1875, and again during the irrigating seasons of 1882 and 1883, but no repairs have taken place on such ditch since 1882. Fourteenth. That neither of the defendants, nor those through whom they claim, have for more than twenty years last past, or at any time, owned or been in the peaceable or actual or continuous possession of the ditch hereinbefore described, or of the right of way across plaintiff's land hereinbefore described for said or any ditch on said land for twenty years, or for...