Swan v. Sproat
| Decision Date | 17 April 1922 |
| Citation | 209 P. 1070,36 Idaho 75 |
| Parties | R. D. SWAN and MINNIE SWAN, Respondents, v. HUGH SPROAT and MCMILLAN SHEEP COMPANY, LIMITED, a Corporation, Appellants |
| Court | Idaho Supreme Court |
APPEAL AND ERROR - INSTRUCTIONS - ABSENCE FROM RECORD - SCHOOL LANDS-EASEMENT.
1. Where appellants fail to bring up instructions given by the trial court, it is impossible for this court to consider error based upon instructions requested by appellants and refused. In this situation it is presumed that the trial court correctly instructed the jury.
2. Where an irrigation ditch extends across a school section the state only can attack the user's right to such right of way.
APPEAL from the District Court of the Third Judicial District, for Boise County. Hon. Chas. F. Reddoch, Judge.
Action for damages. From judgment for plaintiffs defendants appeal. Affirmed.
Judgment affirmed, with costs to respondents.
Elliott & Healy and D. L. Rhodes, for Appellants, cite no authorities on points decided.
Harry L. Fisher, for Respondents.
The record shows that respondents have obtained a right of way by prescription, through the open, notorious, adverse and continuous use of the ditch for many years. (Gorrie v Weiser Irr. Co., 28 Idaho 248, 153 P. 561; Swank v Sweetwater Irr. & Power Co., 15 Idaho 353, 98 P. 297.)
The state is the only one who can raise the question. (Tobey v. Bridgwood, 22 Idaho 566, 127 P. 178.)
The actual possession, occupancy and ownership of any person to property must be respected by all strangers and interlopers. They have nothing to say even though the state in a proper case might have an unquestioned right. (War Eagle Con Min. Co. v. Dickie, 14 Idaho 534, 94 P. 1034.)
In their complaint respondents set up three causes of action against appellants. The first is for damage to an irrigation ditch by a flock of about three thousand sheep belonging to appellants; the second is for damage to crops by reason of lack of water resulting from said damage to respondents' ditch; the third is for loss of grass and pasturage on lands which the respondents claim to have had under lease by reason of appellants permitting their flocks to "eat up, trample out, waste and destroy" the same. The jury returned a verdict for respondents for $ 100 on their first cause of action; $ 50 on the second, and $ 75 on the third.
Appellants assign as error the refusal of the court to give certain instructions requested by them, and the insufficiency of the evidence to show that respondents had any right to the lands claimed by lease; or to show any value at all of the grass alleged to have been destroyed; or to show any damage to respondents' crop resulting from the trespass of appellants' sheep; or to show that the damage, if any, to the respondents' ditch exceeded the sum of $ 50.
Appellants have not brought up the instructions given by the court in this case and it is therefore impossible for this court to consider error based upon instructions requested by appellants and refused by the court. In this situation it is presumed that the trial court correctly instructed the jury. (Adamson v. Mattson, 32 Idaho 493, 185 P. 553; Wright v. Stewart, 32 Idaho 490, 185 P. 69.)
So far as the value of the grass destroyed, the damage to respondents' crops and the damage to their ditch are concerned, the evidence is sufficient to support the verdict and judgment.
Respondents' ditch extends in part across a school section on...
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