Woolman v. Garringer

• Decision Date: 31 January 1876
• Parties: WOOLMAN, appellant, v. GARRINGER, respondent.
• Court: Montana Supreme Court

2 Mont. 405

WOOLMAN, appellant,

v.GARRINGER, respondent.

Supreme Court of the Territory of Montana.

January Term, 1876.

Appeal from Third District, Lewis and Clarke County.

THIS is the same case that was before this court at its August ??erm, 1872, 1 Mon. 535.

E. W. TOOLE and SHOBER & LOWRY, for appellant.

W. F. SANDERS, for respondent.

KNOWLES, J.

The facts presented to us in this case, as we gather them from the record, are as follows: The cause was tried in the district court of the third judicial district, in the county of Lewis and Clarke, in the year 1871. Certain special issues were then submitted to a jury impaneled in this cause. The jury found upon these issues, and brought in a general verdict also for plaintiffs for damages. The objects of the action were to recover damages for the wrongful diversion of water, and for an injunction to restrain the defendants from diverting the same. Upon the special findings both plaintiffs and defendants moved for a judgment. The court awarded judgment to the plaintiffs, and the defendants appealed from this judgment to this court, which, upon the hearing of the cause, made this record: “Now on this day, this cause coming on for decision and judgment on appeal, the court rendered its opinion in writing, which was duly filed, and for reasons assigned in said opinion, it is ordered and adjudged here by the court that the judgment rendered and entered in this cause in the court below be reversed and the cause remanded.” What was the effect of this order? Did it necessitate a new trial of the cause? The decision of this court, it will be observed, was based upon an inspection of the opinion upon two propositions: First. This was an action in which law and equitable relief were asked, and a law and equitable cause of action united, and this was in violation of our Organic Act. Second. It was found by the jury, and was a conceded fact, that the defendants were the prior appropriators of one thousand inches of the waters of McLellan creek, and that the plaintiffs' rights were based upon the appropriation of this water, after defendants had used it through their ditch, and that as a matter of law under these facts the defendants had the undoubted right to extend their ditch, so as to convey this water to a point where it would not flow into plaintiffs' ditch, and hence the court below ought to have given judgment for the defendants upon these findings.

As to the first proposition the decision of the supreme court o?? the United States in the case of Hornbuckle v. Toombs, 18 Wall 648, eliminated it from the case. It held that under our Organi?? Act an equitable and legal cause of action, in certain cases, could be united in the same complaint. This left the opinion of this court in this case, and the judgment therein, resting for support upon the second proposition only. So when this case came a second time before the district court it was confronted with this decision of the United States supreme court in the case of Hornbuckle v. Toombs, which eliminated the first proposition from the case, and was controlling. No one would contend that at that time, in accordance with the former opinion of this court in this case, the court should have held that the cause should not proceed under the complaint in the case, because it contained a legal and equitable cause of action. It was also confronted by the former decision of this court in this case, that under the facts found in the special verdict, judgment should have been for the defendants. The special findings of the jury control the general verdict. See Civil Practice Act, § 215. The facts had been once tried by a jury. Neither party complained of these special findings. The plaintiffs had had their day in court in relation to them. The court below, confronted by these decisions and facts, entered, without a new trial, upon the special findings in the case,...