Stoner v. Mau

• Decision Date: 20 April 1903
• Citation: 72 P. 193,11 Wyo. 366
• Parties: STONER v. MAU
• Court: Wyoming Supreme Court

72 P. 193

11 Wyo. 366

STONER v. MAU

Supreme Court of Wyoming

April 20, 1903

On petition for rehearing, August 20, 1903.

Rehearing Denied 11 Wyo. 366 at 401.

ERROR to the District Court, Uinta County, HON. RICHARD H. SCOTT Judge of First Judicial District, presiding.

Action by Frank A. Mau against John W. Stoner for damages and injunction on account of an alleged actual and threatened wrongful diversion of water from plaintiff's ditch. Judgment went for plaintiff, and defendant, alleging error sought a reversal. The material facts are stated in the opinion.

Affirmed.

Hamm &amp Arnold and Beard & Ausherman, for plaintiff in eror.

The jury failed and refused to follow the instructions of the court. Under the first instruction of the court, given at the request of the plaintiff in error, Stoner was not required to furnish Mau with five cubic feet of water, but was only required to allow that much water to run in the ditch past his (Stoner's) place. Under the second instruction the jury are told that the burden rested upon Mau to prove by a preponderance of the evidence that Stoner actually did prevent that amount of water from passing his premises, and that unless he had so proven, the jury were instructed that Mau could not recover. Under the third instruction, given at the request of the plaintiff in error, that if the jury found that Stoner and Mau entered into an agreement by which their ditches were consolidated to be used in common, and that the consolidated ditch was constructed and completed in accordance with the agreement, that that constituted them joint owners in the enlarged ditch, and that Mau could not recover in this action. The fourth instruction given at the request of the plaintiff in error is as follows:

"You are instructed that if, under an agreement entered into between the plaintiff and defendant, their individual ditches were consolidated, that is, that a portion of each ditch was used for the purpose of making a new and enlarged ditch for the use of both parties in carrying water to their respective lands, and that such agreement was acquiesced in by the parties, and that for several years thereafter they both used water from the said enlarged or consolidated ditch for the purpose of irrigating their respective tracts of land, this would constitute the parties to this suit joint owners of the said ditch, and the plaintiff cannot recover in this action, the statute providing another remedy in such cases."

A comparison of these instructions with the evidence clearly discloses that the jury disobeyed the instructions and disregarded the undisputed testimony on the most material points. Mau himself testifies that the ditches were consolidated; that the consolidated ditch was used in common for a period of three years without controversy, beginning with the year 1897. The testimony of witness Banks, called in behalf of the defendant in error, is to the same effect.

The plaintiff in error testifies to the consolidation and joint use of the ditch. Likewise is the testimony of Victor Forgeon and Aaron Stoner.

It is the undisputed testimony of all the witnesses that the ditch had been used in common by Frank A. Mau and John W. Stoner for at least three successive seasons, and during the same time that complaint is made that Stoner was not allowing five cubic feet of water to run by, two other land owners and irrigators between the plaintiff in error and defendant in error were using water at the same time. There is no evidence that Stoner did not allow the requisite amount of water to pass by him.

The verdict of the jury is contrary to the evidence and cannot support a judgment. It is so well settled as to need no citation of authority that when the jury fail or refuse to follow the instructions of the court, or render a verdict directly contrary to the undisputed testimony, it is error for which a reversal must be had. (11 Ency. Pl. & Pr., 47, et seq.)

Instruction No. 1, given at the request of the defendant in error, was erroneous and calculated to mislead and confuse the jury, because it introduced an issue which was not raised by the pleadings, and upon which there was no testimony. The instruction numbered 2 is erroneous, for the reason that it stated that Mau had a right to five cubic feet of water per second of time in the ditch in question during the months of June and July, 1900. Instruction No. 3 is erroneous in that it is not a correct interpretation of the contract between the parties. Instruction No. 4 is erroneous in that it misinterprets the contract and tends to mislead and confuse the jury.

The court erred in adopting the verdict of the jury and attempting to base a judgment thereon. There is an equitable issue which the jury could not try and which the court refused to separately consider at the beginning; and this equitable issue again becomes prominent when the court adopted the verdict of the jury. If the verdict was wrong, its adoption by the court was error. If the jury, in finding generally for the plaintiff below, found him to be the owner of the ditch, the judgment of the court that he was only entitled to the first five cubic feet of water flowing therein is not in harmony with the pleadings nor the verdict, and the judgment attempted to be based thereon cannot stand. (North Point Con. Irr. Co. v. Utah & S. L. Canal Co. (Utah), 63 P. 812.)

J. A. Hellenthal and J. H. Ryckman, for defendant in error.

Under the contract of May, 1897, Mr. Stoner did some work on the Mau canal, ostensibly, with a view of enlarging it and increasing its carrying capacity. As a part of this plan, apparently, he built a dam in the Mau canal, near its intersection with Spring Creek, and turned the water flowing therein into the ditch above mentioned, which was constructed by the defendant, Forgeon, and Aaron Stoner; and conducted the water through that ditch for a mile or more, and then turned it back into the Mau canal, as originally constructed. There is no authority in the contract for making this change in the mode of carrying the water, and the change was made by Mr. Stoner without consulting Mau or anyone else about it. But, however that may be, the principal question that arises here is: to what extent, if any, did Stoner increase the carrying capacity of this ditch? For if the carrying capacity of the ditch before the contract was made was five cubic feet per second, as Mr. Mau says it was, and the carrying capacity had not been increased by Mr. Stoner, Mr. Stoner could certainly acquire no right to the water flowing in the ditch under the contract. This question was passed upon by this court, when the case was before it upon a former occasion. (Mau v. Stoner, 67 P. 618.)

Upon this evidence the question was submitted to the jury and the jury, by their verdict, found that the carrying capacity of the ditch was not increased. That the verdict of the jury is conclusive in the face of such a conflict of evidence is so elementary that it needs no discussion. (Ketchum v. Davis, 13 P. 15.)

The first error relied upon by plaintiff in error is that the jury failed and refused to follow the instructions of the court. In this connection we wish to call the attention of the court to the fact that none of the instructions referred to in the brief of plaintiff in error as instructions Nos. 1, 2, 3 and 4, are embodied in the bill of exceptions, and are, therefore, no part of the record. We know of no way by which the court's instructions can become a part of the record, so that they can be considered by the appellate court, except by bill of exception. If the plaintiff in error desired to make use of these instructions in this court it was his business to make them a part of the record by bill of exception; he having failed in this, these instructions are not before this court for any purpose. We do not concur in the view that these instructions, or any of them, correctly state the law. The first two instructions referred to, taken together, amount to just this: The jury were instructed that Stoner need not furnish Mau with five cubic feet of water, but was only required to allow that much water to pass his place in the ditch, and that Mau must prove by a preponderance of the evidence that Stoner did actually prevent that amount of water from passing his premises.

It is the testimony of practically all the witnesses that there was no water in the ditch at the Mau ranch at the time complained of. But, say counsel for the defendant. Aaron Stoner and Forgeon both testified that they took some water out of this ditch and they have not been made parties. These men did testify that they took some water out of the ditch, but they did not, as counsel would have us believe, proclaim their own guilt in order to exculpate Mr. Stoner. They say, indeed, that they took some water out of the ditch, but they say that the water they took was their own water--water which belonged neither to Mr. Mau nor Mr. Stoner, and which had nothing to do with the Mau water, with the diversion of which Mr. Stoner is charged. Some time prior to 1897 Mr. Stoner, Mr. Aaron Stoner and Mr. Forgeon constructed a ditch, referred to in the record as the Stoner ditch, from Spring Creek to their respective lands, and a portion of the waters of Spring Creek was diverted and conducted to their lands by means thereby. It was this water, the right to the use of which they had acquired before 1897, and which they held independent of either Mr. Mau or Mr. Stoner, that, according to their evidence, they were using.

If then, Aaron Stoner and Victor Forgeon had a water right in this lower ditch (referred to as the Stoner ditch) prior to 1897, it must be conceded that they could not lose such right by the acts of Mr. John W. Stoner, in turning...