Uhrlaub v. McMahon

• Decision Date: 09 October 1908
• Citation: 15 Idaho 346,97 P. 784
• Parties: FRANK N. UHRLAUB, Respondent, v. A. J. McMAHON et al., Appellants
• Court: Idaho Supreme Court

97 P. 784

15 Idaho 346

FRANK N. UHRLAUB, Respondent, v. A. J. McMAHON et al., Appellants

Supreme Court of Idaho

October 9, 1908

FINDINGS-SUFFICIENCY.

1. Where the trial court fails to find on all the material issues, the judgment will be reversed, unless a finding thereon, either for or against the successful party, would not affect the judgment entered.

2. Where the findings and the decree are not responsive to the case made by the complaint, the judgment will be reversed.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Lyttleton Price, Judge.

An action to recover an interest in a ditch and the water flowing therein. Judgment for Plaintiff. Defendants appeal. Reversed.

Judgment reversed and a new trial granted. Costs awarded to the appellant.

E. M Wolfe, for Appellant, cites no authorities.

Alfred A. Fraser, and S. L. Tipton, for Respondent.

It is the duty of the court to give the findings the most liberal construction the language used will justify in order to sustain the judgment found thereon. (Eastwood v. Standard Mines, 11 Idaho 195, 81 P. 382.)

In equity cases the appellate court will examine the evidence with a view to sustain the trial court in its findings and judgment. (Small v. Harrington, 10 Idaho 499, 79 P 461.)

When no error affecting the substantial rights of the defendants appears in the record, the judgment will be affirmed. (McCrea v. McGrew, 9 Idaho 382, 75 P. 67.)

STEWART J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

Upon the oral argument of this case, counsel for both parties seemed to have great difficulty in enlightening the court as to the nature or character of this action. The same difficulty appears also in the printed briefs. The trial court, it appears, was also troubled by this same mystery, as shown by the findings and decree.

It is alleged in paragraph 1 of the complaint that in the spring of 1897, and now, the plaintiff is the owner of, and had the use of, a certain flow of water to the extent of 75 miners' inches, under a four-inch pressure, running in an irrigating ditch known as the Vader ditch; in paragraph 2, that the plaintiff was at all times mentioned in the complaint the owner of said real property; in paragraph 3, that the plaintiff, in consideration and ownership of said flow of water running in said ditch, did undertake to widen, enlarge and improve the same by and with the express consent, agreement and permission of L. S. Vader, the then owner of said ditch; in paragraph 4, that by and in accordance with said agreement and contract, the plaintiff acquired an interest in said ditch and the ownership of, and the right to the use of, said certain flow of water running therein, the same being an amount sufficient for all uses in irrigating plaintiff's ranch, comprising fifteen acres of cultivated land, and to furnish plaintiff with water for all household, domestic and mining purposes; in paragraph 5, that since the said spring of 1897, the plaintiff, in compliance with said agreement, has expended upon said ditch the sum of $ 152, and has otherwise performed his part of all the covenants entered into and undertaken by him in the premises; in paragraph 6, that the defendants claim to be owners of said property, but whatever interest they may have is inferior and subsequent to that of the plaintiff; in paragraph 7, that plaintiff's interest in said ditch and ownership and use of said water and claim to the right and ownership thereof has been continuous and undisputed. Then follows, in other paragraphs of the complaint, allegations to the effect that defendants have shut off the said water belonging to the plaintiff, and by reason of which fact his crops have been injured and he has otherwise sustained damages.

The answer of the defendants denies specifically the allegations of the complaint, and then alleges, not as a further defense, but as a part of the same defense, that the defendants, the McMahons, are the owners of an undivided half interest in the Vader ditch as constructed upon the lands of the defendant Barnes, and the sole owners of a ditch extending from the Vader ditch to said defendants' land, and the owners and had the use of one-half of the water flowing in said Vader ditch.

Upon the trial of the case, the plaintiff dismissed the cause of action as to damages. The cause was tried to the court and the court made its findings of fact, conclusions of law and entered judgment.

The court finds that the plaintiff has appropriated and used for the irrigation of his land 60 inches of water; that the defendant Barnes has appropriated and used for the irrigation of his land 120 inches of water; that the defendants McMahons have appropriated and used for the irrigation of their land 81 inches of water; that the ditch through the lands of the McMahons is insufficient in places to carry the water necessary for the plaintiff's and the McMahons' land and that to accommodate the plaintiff and the McMahons, it is necessary to enlarge the ditch through what is known as the "rock cut," and that if...