Van Camp v. Emery
| Decision Date | 26 March 1907 |
| Citation | 89 P. 752,13 Idaho 202 |
| Parties | JAMES H. VAN CAMP et al., Respondents, v. G. W. EMERY, Administrator, Appellant |
| Court | Idaho Supreme Court |
STATEMENT ON MOTION FOR NEW TRIAL-WHEN FILED-MOTION FOR NEW TRIAL PASSED UPON BY JUDGE WHO DID NOT TRY THE CASE-RULE IN SUCH CASE AS TO CONFLICT OF EVIDENCE-IRRIGATION-PRIORITY OF APPROPRIATION AND USE OF WATERS-INJUNCTIVE AID OF COURT TO PROTECT RIGHT.
1. Where a statement on motion for new trial appears to have been filed several months after the date of settlement of the same, and objection is made to the use of such statement on motion for new trial, on the ground that it was not filed immediately after its settlement, such objection will be properly overruled where it is not accompanied by some showing of fraud or misconduct on the part of the party who seeks to have it used and considered on such motion, or that the failure to file has been knowingly and intentionally caused by the adverse party.
2. Where a certificate of the judge in settling a statement on motion for new trial recites that the statement "contains all the evidence introduced or considered herein," the statement will be treated on appeal as containing all the evidence in the case, although it may appear from some part of the record that some documentary evidence used on the hearing has been omitted therefrom, and in such case the appellate court will presume that such document or other evidence as has been omitted was treated as immaterial and of no consequence, both by the trial judge and the respective parties to the action.
3. Where a motion for a new trial is heard and passed upon by a judge who did not preside at the trial of the case, and an appeal is taken from the order granting a new trial, the appellate court will review the evidence with reference to its weight and preponderance in the same manner and under the same rule as would apply to the trial judge who passed upon the motion.
4. A prior appropriator of the water of a stream may divert and use the amount of water to which he is legally entitled, but when he has once done so, he may not dam the stream below him, or hinder or impede the flow of the remaining waters of the stream to the headgate of the next appropriator.
5. The fact that a stream in its original native condition was dammed so as to cause the waters to percolate through and sub- irrigate adjacent meadow lands will not of itself justify the owner of such lands in maintaining the stream dammed in such condition to the injury of other appropriators, but may, on the other hand, be sufficient to initiate a right for a quantity of the waters of such stream adequate for the surface irrigation of the lands previously so subirrigated therefrom.
6. The appropriators and users of the waters within this state will be required and commanded to so divert, use and apply the waters as to secure the largest duty and greatest service therefrom.
(Syllabus by the court.)
APPEAL from the District Court of the Sixth Judicial District for Custer County.
Motion for a new trial heard before Hon. Geo. H. Stewart. Judge of the Third Judicial District at Boise, Ada County.
Action to determine the priorities to the use of the waters of Warm Springs creek, Custer county. Judgment and decree determining the several rights of the parties. Plaintiff moved for a new trial and the motion was granted and defendant appealed from the order. Order granting a new trial affirmed.
Order affirmed. Costs awarded in favor of respondents.
L. H Johnson and Perky & Blaine, for Appellant.
The statement on motion for new trial was not filed with the clerk of the court as required by law. The statement was settled on October 7, 1902, and again on December 31, 1902 and was not filed with the clerk until May, 1903.
"When settled, the statement shall be signed by the judge or referee, with his certificate to the effect that the same is allowed, and shall then be filed with the clerk." (Rev Stats. 4441, subd. 3.) "Then" does not mean four months afterward. Webster defines "then" as follows: At that time, referring to a time specified, either past or present. Soon afterward; immediately.
If it can be lost for four months and still be efficient as a valid statement without being identified as the original, then why not for a year or four years?
It does not contain that which the certificate of the judge says it contained at the time he made the settlement. The certificate was not attached to this particular statement for several months after the certificate was made. No one gives any account of its whereabouts during said months; the attorneys then having it in charge are dead, and it is not a complete and full statement of the evidence. (Stickney v Hanrahan, 7 Idaho 424, 428, 63 P. 189.)
On application for a new trial it must appear that substantial justice has not been attained, that the applicant is entitled to succeed, and that a new trial will probably change the result. (14 Ency. of Pl. & Pr. 774, 934.)
It cannot be seriously contended that the appellant is not entitled, under the evidence, to the forty-five inches of water decreed him.
The general rule that an order granting a new trial will not be reversed on appeal unless there has been a manifest abuse of discretion, is invoked only in behalf of the judge who sat at the trial of the case on its merits. But the judge who granted this motion for a new trial was not present at the trial of the case, and knows nothing of the character or conduct of the witnesses.
His decision must stand or fall upon its merit without being tempered by the "abuse of discretion" rule. ( Roby v. Roby, 10 Idaho 139, 77 P. 213; Houghley v. Wabasha, 69 Minn. 245, 72 N.W. 78; Minneapolis First Nat Bank v. St. Cloud, 73 Minn. 219, 75 N.W. 1054.)
N.H. Clark, for Respondents.
The record as shown by the certificate of the judge shows that statement was settled without objection.
The statute does not give a definite number of days for filing the statement. In Reay v. Butler, 69 Cal. 572, 11 P. 463, the supreme court in discussing the question says:
On December 31, 1902, the learned judge certifies that the statement contains all the evidence, which certificate he makes as the judge of the court; which certificate is acquiesced in by all the counsel for all the parties for a period of about three years, and to-day, as counsel for the defendants, he certifies that it does not contain the evidence. Which certificate should be taken?
Defendant Treloar testifies it would take forty-five inches of water to irrigate his farm after plaintiff spaded out the stream, for which he gets judgment; he then gets this injunction giving him back the stream as it was. Whatever he gets by seepage, percolation and overflow is what he got in the early days undisputed, and this only.
This action was originally commenced in the district court in and for Custer county in the year 1898, to determine the rights and priorities of the plaintiffs in and to the waters of Warm Springs creek within that county. Issue...
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...hundred years ago, we held that a senior appropriator was not protected in an unreasonable means of appropriation. In Van Camp v. Emery, 13 Idaho 202, 89 P. 752 (1907), the senior appropriator dammed a creek so that the water would back up, raising the water table to subirrigate his lands. ......
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