Sullivan v. Jones

• Citation: 108 P. 476,13 Ariz. 229
• Decision Date: 02 April 1910
• Docket Number: Civil 1147
• Parties: J. W. SULLIVAN, Defendant and Appellant, v. ALBERT M. JONES, Plaintiff and Appellee
• Court: Supreme Court of Arizona

108 P. 476

13 Ariz. 229

J. W. SULLIVAN, Defendant and Appellant, v. ALBERT M. JONES, Plaintiff and Appellee

Civil No. 1147

Supreme Court of Arizona

April 2, 1910

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for Yavapai County. Richard E. Sloan, Judge. Modified and affirmed.

The facts are stated in the opinion.

Ross &amp O'Sullivan, for Appellant.

The findings of fact, conclusions of law and judgment and decree must be responsive to all material issues made by the pleadings, and should cover all such issues. Shattuck v Costello, 8 Ariz. 22, 68 P. 529, 22 Morr. Min. Rep. 136; 8 Ency. of Pl. & Pr. 944; Garfield v. Wilson, 74 Cal. 175, 15 P. 620; County of Cochise v. Copper Queen Co., 8 Ariz. 221, 71 P. 946. Where the court fails to make findings on all the material issues raised by the pleadings, the proper procedure is to reverse the judgment and remand the cause with directions to find upon all the material issues in the cause, or in case of inability so to find, to try the action anew. Watson v. Cornell, 52 Cal. 91.

Reese M. Ling, for Appellee.

The objections as to the sufficiency of the judgment being urged for the first time in this court, they cannot be examined. Roy & Titcomb v. Flin, 10 Ariz. 80, 85 P. 725; Demund Co. v. Stillwell, 8 Ariz. 1, 68 P. 543; Ward v. Sherman, 7 Ariz. 277, 64 P. 434; Marks v. Newmark, 3 Ariz. 224, 28 P. 960. Where a judgment is rendered upon a disputed statement of facts, this court will not disturb the judgment of the lower court. Tweed v Lowe, 1 Ariz. 488, 2 P. 757; Willard v Carrigan, 8 Ariz. 70, 68 P. 538; Abernathy v. Reynolds, 8 Ariz. 173, 71 P. 914; Taggart Merc. Co. v. Clack, 8 Ariz. 295, 71 P. 925; Molina v. Luce, 9 Ariz. 29, 76 P. 602; Johnson v. Cummings, 7 Ariz. 60, 60 P. 870.

OPINION

CAMPBELL, J.

-- Appellee, as plaintiff below, by his complaint in this action alleged an appropriation of all of the surplus and flood water carried by what is described as a gulch or wash, having its head or source in the vicinity of Table Mountain, in Yavapai county. He further alleges that, to impound the said surplus and flood water, he had constructed a dam across said gulch or wash, and that the defendant was constructing a dam some two miles above, which would prevent the water reaching plaintiff's dam, and in such a manner that it would be a menace to plaintiff's dam in the event of heavy rains falling above it, causing it to break, and permitting a large quantity of water suddenly to be thrown against plaintiff's dam. An injunction was prayed for, and it was further asked that the plaintiff be decreed entitled to the water carried by the gulch or wash. A temporary injunction was issued, restraining the defendant from constructing his dam, which injunction shortly thereafter was modified so as to permit the defendant to proceed with the construction under certain conditions. In his answer, the defendant alleges an appropriation of the surplus and flood waters of the gulch or wash at a time prior to plaintiff's appropriation; that he had constructed a dam which, by reason of heavy floods, had been partially destroyed; and that he was engaged in reconstructing it. By way of cross-complaint, he alleges that prior to the plaintiff's appropriation he appropriated all of the flood waters of a creek into which the gulch or wash in which plaintiff's dam is situated empties, and had constructed a dam some miles below plaintiff's dam, to impound the waters; that about three years before plaintiff built his dam defendant's lower dam was destroyed by floods, and has not yet been rebuilt, but that he has not abandoned his rights, and expects to reconstruct his said dam, and impound and use the waters. He asks that the court decree him entitled to all of the water carried by the gulch.

As a second cause of action, by way of cross-complaint, the defendant alleges that the plaintiff waters several thousand sheep at his dam, and that the sheep are permitted to go into the water, and that they so pollute the water as to render that which flows to defendant's lower dam unfit for his use. He asks the court to decree that the act of plaintiff in permitting the pollution of the water constitutes a nuisance, and that he be enjoined from so permitting the water to be polluted.

As a third cause of action, by way of cross-complaint, he alleges that by reason of the wrongful suing out of the injunction he has been damaged in the sum of $150.

At the trial the evidence disclosed the facts relative to the plaintiff's dam and the defendant's upper dam to be substantially as above set forth. It also appears that there is no permanent flow of water in the gulch or creek in which the dams are situated; that when heavy rains come the surface water is rapidly carried from the mountains through gulches or washes, and the floods at times assume considerable proportions; that none of the dams, nor all of them together, are sufficient to impound all of the water which is likely to flow against them in flood seasons; that, when the rains are light, the lower dam of defendant, when properly repaired, will impound all the water that gathers in the gulch between it and his upper dam; and that the water impounded by the several dams is principally used for the watering of sheep and cattle.

It is apparent that appellant is entitled to maintain his upper dam and impound so much of the water falling above it as he requires for beneficial purposes. It is further apparent that he should maintain his dam in such a manner as to permit so much of the water as he does not require for his uses to pass to appellee, and to construct it with reasonable care, so as not to endanger appellee's dam. The trial court so decreed. The court, however, refused to...