Stocker v. Kirtley

• Decision Date: 16 January 1900
• Citation: 6 Idaho 795,59 P. 891
• Parties: STOCKER v. KIRTLEY
• Court: Idaho Supreme Court

59 P. 891

6 Idaho 795

STOCKER v. KIRTLEY

Supreme Court of Idaho

January 16, 1900

PRACTICE-INJUNCTION-DAMAGES.-In a case when a perpetual injunction is prayed for, and also damages, the court must try the issue raised as to the injunction, and, on demand of either party, submit the question of damages to a jury and thereafter enter the proper judgment.

SAME-CAUSES CANNOT BE TRIED PIECE-MEAL.-It is error to try the issue as to the injunction, enter judgment thereon, and continue the question of damages to a subsequent term of the court. Causes cannot thus be tried piece-meal.

SAME-EVIDENCE.-All who are neither parties to a judgment nor the privies to such parties are not bound by such judgment.

COURT MUST GRANT ANY RELIEF EMBRACED WITHIN THE ISSUES.-Under the provisions of section 4353 of the Revised Statutes, when an answer is filed, the court may grant any relief consistent with the case and embraced within the issues.

WATER RIGHT-DITCH.-One may own a ditch, without owning a water right and may protect it from injury.

(Syllabus by the court.)

APPEAL from District Court, Lemhi County.

Reversed and remanded.

Redwine & Boyd, for Appellant.

The court erred in admitting the judgment-roll in the action of Michael Boyle, Thomas Boyle and Murray Williams v. Thomas McGarvey and others. It is an elementary principle of law that a judgment can have no binding force upon anyone a stranger to the action. (2 Black on Judgments, sec. 600.) The evidence having shown clearly that the company used all the water, it was competent to prove the declarations of the users under a claim of ownership by adverse user. These declarations would be the strongest possible evidence tending to prove adverse user. Bearing upon this point, we refer to Cannon v. Stockmon, 36 Cal. 536, 95 Am. Dec. 205; Lick v. Diaz, 44 Cal. 479; Stockton Sav. Bank v Staples, 98 Cal. 189, 32 P. 937; 1 Am. & Eng. Ency. of Law, 304, note. If an injunction should be granted for every slight damage as the facts in this case clearly show, the leading industry would be greatly retarded for there is scarcely a mining stream in this part of the state not used for mining purposes. Injunction does not necessarily follow damages. (Robb v. Carnegie Brothers & Co., 145 Pa St. 324, 27 Am. St. Rep. 694, 22 A. 649; High on Injunctions secs. 749, 752; Lindley on Mines, sec. 842; Fitzpatrick v. Montgomery, 20 Mont. 181, 63 Am. St. Rep. 622, 50 P. 416.) This court has power to order such judgment as the evidence warrants. In chancery cases, the supreme court, on appeal, has full power to correct the errors of the court below in whatever shape or by whatever party the appeal is taken up. (Grayson v. Guild, 4 Cal. 122; Idaho Rev. Stats., sec. 3818; McAfee v. Reynolds, 130 Ind. 33, 30 Am. St. Rep. 194, 28 N.E. 423.)

John H. Pagdham and W. T. Reeves, for Respondent.

The well-settled rule of law that the refusal of the court to grant a new trial will not be reviewed on appeal, unless there is a gross abuse of discretion, the motion being addressed to the sound discretion of the trial court. (Speck v. Hoyt, 3 Cal. 421; Hastings v. Steamer U.S. 10 Cal. 341; Gerald v. Brunswick & Balke Co., 67 Cal. 124, 7 P. 306; Pico v. Cohn, 67 Cal. 258, 7 P. 680; Pierce v. Schaden, 55 Cal. 406; Phelps v. Union etc. Co., 39 Cal. 410; Pacific etc. Co. v. Telegraph Co., 79 Cal. 340, 21 P. 840.) We contend that if there is a conflict of evidence this court will not interfere with the findings; that before this court will review the action of the lower court in this regard there must be a failure of evidence on the fact found. (Speck v. Hoyt, 3 Cal. 421; Wheeler v. Hays, 3 Cal. 287; Cole v. Bacon, 63 Cal. 571; Putman v. Lamphire, 36 Cal. 151.) No party has the right to so pollute the waters of a stream, by depositing tailings therein, so that in using it below for agricultural purposes the land would be injured and made unfit for use on account of sand, sediment and debris settling thereon and in support of this contention, we cite the following authorities: Fitzpatrick v. Montgomery, 20 Mont. 181, 63 Am. St. Rep. 622, 50 P. 416; Hobbs v. Canal Co., 66 Cal. 161, 4 P. 1147; People v. Gold Run Co., 66 Cal. 138, 56 Am. Rep. 80, and note, 4 P. 1152; Levaroni v. Miller, 34 Cal. 231, 91 Am. Dec. 692, and note; People v. Elk River Mill etc. Co., 107 Cal. 214, 48 Am. St. Rep. 121, 40 P. 486; Woodyear v. Schaefer, 57 Md. 1, 40 Am. Rep. 419; Robinson v. Coal Co., 57 Cal. 412, 40 Am. Rep. 118; Columbus etc. Co. v. Tucker, 48 Ohio St. 41, 29 Am. St. Rep. 528, and note, 26 N.E. 630; Mississippi Mills Co. v. Smith, 69 Miss. 299, 30 Am. St. Rep. 546, and note, 11 So. 26. Although appellant is conducting a lawful business it must be conducted in a lawful manner and not so as to injure others. (Hobbs v. Amador etc. Co., 66 Cal. 161, 4 P. 1147, and authorities there cited.)

SULLIVAN, J. Huston, C. J., concurs. Quarles, J., did not sit at the hearing of this case, and took no part in the decision.

OPINION

SULLIVAN, J.

This is an action to enjoin the defendant (who is appellant here) from running placer mining debris, consisting of rock, sand, gravel, and sediment, into plaintiff's irrigating ditch and upon his land, and for damages. The complaint specifically prays for $ 400 damages for a perpetual injunction, and "for such other proper and equitable relief as to the court shall seem meet, and for costs of suit." Among other allegations, the complaint alleges ownership in the plaintiff of a certain water right, consisting of one hundred and forty inches, of the water of Kirtley creek, but no specific prayer for a decree to that effect is contained in the complaint. The answer contains a denial of the material allegations of the complaint, and, as a separate defense, sets up title, acquired by adverse user, to all of the water of said creek. When the cause came on for trial, counsel for appellant demanded that the issue made as to damages be first tried by a jury, which demand the court denied, and proceeded to try the issues as to the respondent's right to a perpetual injunction, and as to the amount and priority of his water right, upon which issues the court made its findings of fact and conclusions of law, and entered judgment and decree in favor of the respondent, perpetually enjoining the appellant, and decreeing the priority of his water right to the extent of one hundred and forty miner's inches. The issue for damages was continued for the term, and a motion for a new trial denied. This appeal is from the judgment, and an order denying the motion for a new trial.

We shall, in limine, advert to the manner in which this case was tried. The complaint states but one cause of action and the claim for damages is incidental to that. The court should have tried the equitable part of this action, and thereafter, if a jury was demanded to try the issue of damages, submitted that question to a jury. After verdict, the court ought to have made its findings of fact and conclusions of law, and entered judgment accordingly. Such actions as this must not be tried piecemeal, and several judgments entered; that is, the material issues must all be tried and found upon before judgment is entered, else one material issue might be tried, and judgment entered thereon, and the other issues postponed until...