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land to repair said iron pipe and to protect A court of equity in a suit to quiet title, under a general prayer for relief, where the

and control sufficient water from

from said facts warrant it, in addition to quieting the title springs, and that his title to said rights may may restrain defendant from asserting any claim be quieted as against the defendant, and for adverse to plaintiff's right and prohibit him from doing any act that would tend to impair general relief. Defendant demurred to the that right.

complaint on the ground that it does not state [Ed. Note.-For cases in point, see Cent. Dig. a cause of action. The demurrer was overvol. 41, Quieting Title, $ 100.]

ruled, and defendant in his answer pleaded

the judgment in the former suit as a bar to Appeal from District Court, Weber Cound this action. ty; J. A. Howell, Judge.

The findings of the court, so far as maSuit by Lee Richey against Marion Beus. terial here, are as follows: "That the said From a decree for plaintiff, defendant ap- | Lee Richey, at the time of the rendering of peals. Affirmed.

the decree in the first above-entitled action, This is an action to quiet title to a right and contract from one John J. Cortez to him,

predicated his title thereto on a certain deed of way.

Plaintiff alleges in his complaint: (1) That he is the owner and entitled to the whereby there was conveyed to the said Lee possession and use of sufficient water from

Richey the aforesaid pipe line and water

right, but failed to convey to the said Lee certain springs which are situated northeası from defendant's residence in Weber county, Richey the right to enter for the purpose of

line. That subseUtah, to fill a one-inch pipe; that he is the repairing the said pipe owner of a pipe line extending from said quent to the rendering of the decree above springs through and across defendant's land mentioned, on or about the 12th day of Oc(describing it) to plaintiff's residence, and tober, 1903, the said J. J. Cortez did by deed that he has a right or easement to enter upon

convey to the said plaintiff the right to enter the said land and along the line of the afore

upon the said land, along the line of said said iron pipe for the purpose of keeping pipe, and repair the said pipe and to keep same in repair and full of water. (2) That the said pipe full of water, which said deed on August 5, 1903, the defendant brought an

was duly recorded in the recorder's office of action in this court (the district court of

Weber county, Utah. That said J. J. Cortez Weber county) against the plaintiff herein

was the owner prior to the said two deeds asking that plaintiff be perpetually enjoined and conveyances last above mentioned of the from entering in and upon the real estate said water right, pipe line and right to enter described, and for other relief. (3) That at

on said land along the line of said pipe, and the time and during the pendency of saia repair the said pipe line and to keep the said action plaintiff was informed and believed pipe full of water, and that the said J. J. that the water right, right of way, and ap- Cortez, by the two deeds, conveyed all his purtenances described had been conveyed to right, title, and interest in the said property him by a good and sufficient deed from one

to the said plaintiff here, Lee Richey, who is J. J. Cortez, who at that time was the owner

now the owner and entitled to the possession thereof, and that, relying upon said informa- thereof, but shall not change the location of tion and belief, said action was brought to

said pipe line on defendant's land. That the trial and heard on October 13, 1903, and a

said pipe line and water right has been in decree rendered perpetually enjoining said continuous use since its said construction by plaintiff from entering upon said lands. (4) the said plaintiff, Lee Richey, and bis predThat at said trial it was discovered that the ecessors in interest." right of way to enter upon said land and

As conclusions of law the court found: repair said pipe, together with the appurte- (1) That plaintiff is entitled to a decree modnant right to obtain sufficient water from ifying the judgment entered in the former said springs to fill said pipe had not been suit hereinbefore mentioned by eliminating conveyed by the deed theretofore executed therefrom the injunctive provisions.whereby hy said J. J. Cortez to plaintiff.' (5) That im- | plaintiff is restrained from entering upon mediately after the rendition of said decree defendant's premises along the pipe line in the said J. J. Cortez, by his deed dated Oc- question. (2) That the cloud caused by said tober 12, 1903, conveyed to the plaintiff here- judgment now existing upon plaintiff's title in the right to enter upon the said land to to said pipe line and right of way be remaintain and repair the said pipe, which he moved. (3) “That the said Marion Bueś be duly recorded in the recorder's office in and she is perpetually enjoined from digging Weber county, Utah. (6) That defendant is any ditches upon her said land which will claiming that said decree forecloses plain- have the effect of interfering with or obtiff from exercising his rights under said structing the flow of water of said springs deed, and that by reason thereof the said so as to prevent said one-inch pipe being decree acts as a cloud upon his title. The kept full of water at all times, or in any complaint concludes with a prayer that said manner to do anything upon the said land decree be modified so as to permit plaintiff which will have that effect.” A decree was entered in accordance with the foregoing con- with the bringing of the former suit, or with clusions of law. To reverse this decree de- ! the trial thereof upon which to base a defendant has appealed to this court on the cree modifying the judgment rendered in the judgment roll.

former case. The facts alleged are sufficient, Appellant alleges that the court erred in however, to support a decree quieting plainthe following particulars: (1) In overruling tiff's right and title to an easement in and defendant's demurrer to the complaint, be- across the premises mentioned for the pur(ause said complaint shows on its face that pose of enabling him to maintain and keep the matters therein set up had already been in repair his pipe line. A court of equity. adjudicated. (2) In the conclusion of law in an action to quiet title, may, under a genwherein it is held that defendant should be eral prayer for relief, not only enter a judgperpetually enjoined from digging any ditch- ment quieting plaintiff's title when the facts es upon her lands which will have the effect warrant it, but, in a case such as the one at of interfering with or obstructing the flow of bar, where the right to occupy and use lands water from the springs on said land so as to for a specific purpose is in controversy, may prerent plaintiff's one-inch pipe being kept include in the judgment a general order, refull of water at all times. (3) In rendering straining the defendant from asserting any judgment in accordance with the foregoing claim adverse to and in derogation of plainconclusions of law.

tiff's right, and may also prohibit the defend

ant from doing any act that would tend to J. N. Kimball and Thomas Maloney, for impair or destroy such right. It must be appellant. W. L. Maginnis, for respondent.


conceded that if the decree were modified,

and the injunctive provisions eliminated MCCARTY, C. J., after making the fore

therefrom, the defendant would be legally going statement of the case, delivered the

bound to respect plaintiff's rights as defined opinion of the court:

and fixed by the decree so modified, and The complaint shows on its face that plain

that, for any invasion of such right by detiff acquired the title upon which he bases

fendant to the injury of plaintiff, the latter his right for recovery since the rendition of

would have a right of action, and under a the judgment in the former suit, and which,

proper proceeding, could obtain precisely the defendant claims, is res adjudicata. Ac- same relief as is given in this case. Therecording to the rule as laid down by the fore we do not think the court exceeded its great weight of authority, the judgment in

power in granting injunctive relief, and the former suit only determined the rights of thereby terminating the litigation. The genthe parties up to the time it was rendered,

eral rule as declared by the more recent auand cannot prevent plaintiff from recover- thorities is that "on a final hearing the court ing on his subsequently acquired title. In

may decree a perpetual injunction if it is Wells on Res Adjudicata and Stare Decisis,

necessary for the purpose of complete jus§ 332, the author tersely and, as we think,

tice, although not prayed for in the bill." correctly states the rule as follows: "When

10 Ency. Pl. & Pr. 962 and cases cited ; 2 one fails to establish and afterwards acquires Spelling, Extra Relief, 998; 2 High on Ina new, or partially new, title, the former ac

junctions, 1573; Power v. Athens, 99 N. Y. tion does not debar him from seeking to re

3.2. 2 N. E. 609; Webster V. Harris, 16 cover on the subsequent acquirement. The Ohio, 190. former judgment merely settled the fact of

The judgment is affirmed with costs. title at the time it was rendered; but the second suit relies on a different title and so is STRAUP and FRICK, JJ., concur. in reality not on the same issue." The following authorities also declare the same doc

(34 Mont. 513) trine: Perkins v. Parker, 10 Allen (Mass.) 22; McKissick v. McKissick, 6 Iumph. (Tenn.)

PASSAVAXT V. ARNOLD. 75; Taylor V. McCrackin, 2 Blackf. (Ind.) (Supreme Court of Montana. Dec. 4, 1906.) 261; 24 A. & E. Ency. L. (2. Ed.) 777; 9 APPEAL - RECORD - QUESTIONS PRESENTED — Ency. Pl. & Pr. 624. Applying the law of

SUFFICIENCY OF EVIDENCE-CERTIFICATE. res adjudicata as announced by the fore

Where there is no recital in the statement

nor in the certificate of the judge and the narragoing authorities to the facts alleged in the tive of the proceedings is not so connected as complaint in this case, we are of the opin- to enable the court to say from an examinaion, and so hold, that the demurrer is with

tion of it that it aslirmatively appears that all

or the substance of all the evidence is incorpoout merit and was properly overruled. rated in the statement, its sufficiency cannot be

It seems that the trial court and the par- reviewed. ties to the suit treated it as an action brought [Ed. Yote. For (ases in point, see Cent. Dig. to modify a judgment, whereas it is essential- vol. 3, ppeal and Error, $ 2916.] ly an original action to quiet title. We must Appeal from District Court, Lewis and look to the allegations of the complaint in Clarke County ; J. M. Clements, Judge. determining the character of the action, and Action by Walter Passavant against Walnot to what attorneys may label or call it. ter W. Arnold. From a judgment and from No facts are alleged showing fraud, mistake, an order denying a new trial, defendant apsurprise, accident, or anything else connected

peals. Affirmed,

T. J. Walsh and Bach & Wight, for ap- tial error is made apparent, prejudice will pellant. Word & Word, for respondent. be presumed unless the record shows affirma

tively that such error is not prejudicial. BRANTLY, C. J. This action was brought Parrin v. Montana C. Ry. Co., 22 Mont. 290, to obtain a judgment quieting the title to the

56 Pac. 315. If the error alleged is one of use of certain of the waters of Spokane

law, the record must show affirmatively the Creek in Lewis and Clarke county. The right objectionable ruling, together with so much in controversy is based upon an appropria- of the attendant proceedings as will make it tion of 180 inches made by the defendant, apparent. If the ruling or decision does not which plaintiff claims he now owns under

belong to the class to which the statute recertain conveyances from defendant. One of serves an exception (Code Civ. Proc. $ 1151), these purports to convey a right to the use

the record must show an exception, properly of 110 inches, statutory measurement, out of reserved at the time by the appellant himthe headwaters of the stream and its upper self. If the error complained of be that the tributaries, and was made directly to the evidence is insufficient to sustain the findings plaintiff. As to the effect of this conveyance or verdict, this court cannot upon a review there is no controversy. The claim to the of the decision declare it erroneous unless remainder of the right rests upon the con- the record contains all the evidence, incorstruction of a certain bond for a deed exe- porated therein as prescribed by the statute, cuted by defendant to one Rohde to certain and that it does so should affirmatively aplands, together with one-half of the water pear (State v. Shepphard, 23 Mont. 323, 58 and water right at the head of defendant's Pac. 868; Ramsey V. Burns, 27 Mont. 154, ditch, of a deed by defendant to one Seme- 69 Pac. 711; King v. Pony Gold M. Co., 28 nec who became the assignee of the bond, Mont. 74, 72 Pac. 309); for the functions of and a deed from Semenec to the plaintiff. this court being confined to a review of the The bond referred to was executed prior to

proceedings had in the district court, the the date of the deed to the 110 inches, but record in relation to the matter upon wbich the latter was taken without notice, and was review is sought, must be the same, so far first recorded. The issue tried was whether as may be, as that upon which the district the defendant still owns one-half of the in.

court acted. That it is the same this court terest remaining after the first deed was exe.

cannot know except by affirmative proof, for cuted. The plaintiff, pleading and relying the presumptions in this regard do not aid upon a final judgment rendered by the dis

the appellant. To hold otherwise would be trict court of Lewis and Clarke county on

to disregard entirely the presumption of the July 2, 1897, in a cause wherein the defend correctness and regularity in favor of the ant was plaintiff and the plaintiff herein particular ruling. The proof should be made was one of the defendants (Arnold v. Pas

by recital in the record itself. savant, 19 Mont. 575, 49 Pac. 400), by which

Section 1155 of the Code of Civil Procedure the priorities of the respective rights of the provides what the certificate of the judge parties to the use of the waters of the stream

attached to the bill of exceptions or stateas they then existed were determined, as- ment shall contain. It does not authorize sumed the position that the terms of these

any other statement than that "the same (the conveyances are clear and unambiguous, and bill) is allowed.”

bill) is allowed." In State y. Shepphard, su

v. that defendant was estopped by the judg. | pra, it is said: "Where the bill of excepment referred to, to dispute his right assert- tions itself it relied on to show the insuffied under them. Defendant assumed the po- ciency of the evidence, it should either set sition that the terms of these conveyances forth in express language that all the eviare indefinite and ambiguous and, if con- dence, or the substance thereof, or so much strued and applied to the subject-matter in thereof as is necessary to illustrate the point the light of the attendant circumstances, they relied on, is all incorporated in the bill, or would sustain his claim of title. The court, it should contain statements equivalent to upon the evidence adduced, found the issue

such expressions, or it should show a whole in favor of the plaintiff. The defendant has connected narrative, so constructed that it appealed from the judgment and an order

clearly appears that all the material evidenying him a new trial. The sole quesčiondence, or the substance thereof, is incorposubmitted by him is whether the evidence rated in the bill.” In another place in the justifies the findings. He is met by an objec- | opinion it is said, in substance, that it is tion by plaintiff that this question cannot sufficient if it appears from the certificate of be considered, for the reason that it does the judge that the whole of the evidence is not appear affirmatively that the record con- in the record. In view of what the statute tains all of the evidence.

provides, we doubt the technical correctness On appeal the presumption is that the ac- of this statement, and if this question were tion of the trial court is correct, and in an open one we should hold differently. Inorder to overturn its judgment or decision asmuch, however, as it is frequently the pracit is incumbent upon the appellant to show tice to have the judge certify that the record affirmatively that error has been committed. contains the evidence, encouraged no doubt Rumney L. & C. Co. v. Detroit & Mont. C. by the statement referred to, we shall not Co., 19 Mont. 559, 49 Pac. 395. If substan. now say that such practice is bad. The beto ter rule is that the statement or bill itself Action by IIaggerty Bros. against Lash & should contain recitals showing unequivo- Shaughnessy. From a judgment for defendcally the fact. This court went to the ex-ants, plaintiffs appeal.

, Reversed. treme limit of liberality in the case of State

Joseph J. McCaffery and H. W. Rodgers, v. Shepphard, and if, as suggested therein

for appellants. W. H. Trippet and J. H. may be done, the moving party undertakes Duffy, for respondents. to construct a narrative of the proceedings so connected as to show affirmatively tiat HOLLOWAY, J. This is an action in the record contains all the evidence, he does i claim and delivery brought by the plainso at his peril. It is much easier and safer tiffs, Haggerty Bros., to recover the possessto have an express recital in the bill or state- ion of certain personal property consisting of ment itself. In this case we find no recital | horses, wagons, etc., and for damages for the in the statement; nor does the certificate of wrongful detention of the same. The comthe judge refer to the evidence. The nar- | plaint is in the usual form. The answer rative of the proceedings is not so connected denies plaintiffs' title or right of possession as to enable us to say from an examination to the property, and sets forth that on of it, that it affirmatively appears that all, August 29, 1904, plaintiffs and defendants enor the substance of all, the evidence is incor- tered into an agreement in writing by the porated in the statement. For this reason terms of which defendants purchased the the objection of respondent must be sus- property in controversy from the plaintiff's tained.

for the sum of $250, payable in installments. The result is that the judgment and order | It was further agreed that defendants should are affirmed.

haul 3,000,000 feet of lumber for plaintiffs, Affirmed.

for which they were to receive $2.50 per

thousand feet. The answer then alleges that MILBURN and HOLLOWAY, JJ., concur. defendants paid two installments on the pur

chase price of the property, but that on De

cember 11, 1904, plaintiffs, in violation of the (34 Mont. 517)

agreement, wrongfully compelled defendants HAGGERTY BROS. V. LASH & SHAUGH

to cease work, and thereby prevented them NESSY.

from fully carrying out the contract. The

answer further alleges that on January 11, (Supreme Court of Montana. Dec. 4, 1906.)

1905, the plaintiffs wrongfully and malicious1. APPEAL-RESERVATION OF GROUNDS FOR ly caused the property to be taken from the REVIEW-MOTION FOR NEW TRIAL.

possession of the defendants, to their damage Where assignments of error in appellant's brief in the giving and refusal of instructions

in the sum of $25 per day. The reply adare not made in plaintiff's statement on motion mits the execution of the contract of August for new trial, they will be considered as though 29, 1904, and that defendants paid $150 on the record contained only the judgment roll without the evidence.

the purchase price of the property. Every [Ed. Note.-For cases in point, see Cent. Dig.

other allegation in the answer is denied. vol. 2, Appeal and Error, $ 1697.]

Upon the trial the court gave instruction No. 2. REPLEVIN-WRONGFUL TAKING-DAMAGES. 10, as follows: "If you find for the defend

In an action of claim and delivery, an in- ants in this action, you will assess their struction that the jury should assess defend- damages at the value of the use of the propant's damages for a wrongful taking at the value of the use of the property from the time

erty taken by the plaintiffs from the time of the taking to the present time was erroneous,

of the taking of the same, to wit, January as the jury should have been told to deduct from 17, 1905, up to the present time.” And rethe earnings of the property any expense in fused to give an instruction asked by the caring for it. [Ed. Note. For cases in point, see Cent. Dig.

plaintiffs, as follows: “The court instructs vol. 42, Replevin, $ 357.]

the jury that a party who claims compensa3. SAME.

tion for an alleged wrong done must show, In an action of claim and delivery in which not only that he has suffered a loss on acdefendants denied plaintiff's title and claimed count of the injury, but also what was the damages for wrongful taking, plaintiff was en

amount of the loss, and the burden of provtitled to an instruction that a party who claims compensation for an alleged wrong must show

ing both these things is upon the party allegnot only that he suffered a loss, but what was ing the wrong.” The jury returned a verdict the amount of the loss, and the burden of prov in favor of the defendants for the return of ing both was on the party alleging the wrong.

the property, and for $300 damages for the 4. APPEAL-DISPOSITION OF CAUSE-REVER


wrongful taking and detention of it by the .Where, in claim and delivery, no error was

plaintiffs, and judgment was entered in accommitted in determining the issue of owner- cordance with the verdict. From this judgship, but erroneous instructions on the question

ment and an order denying their motion for of damages were given, the appellate court will remand the cause, with instructions to grant a

a new trial, the plaintiffs appeal. new trial of the issue as to damages only, and In their brief appellants make these among to have the judgment modified accordingly. other assignments of error: (1) The giving

[Ed. Note.--For cases in point, see Cent. Dig. of instruction No. 10; (2) the refusal of vol. 3, Appeal and Error, $$ 4614, 4615.]

the court to give plaintiffs' requested inAppeal from District Court, Deer Lodge struction above. These assignments, howCounty; Geo. B. Winston, Judge.

ever, are not made in plaintiffs' statement on


Open, visible, continuous, and unmolested use of a way for more than 30 years prior to the commencement of an action with reference thereto is sufficient to raise a presumption that the use was under an adverse claim of right suflicient to establish a prima facie title by prescription, and the burden of proof is on the party alleging that the use was permissive to prove such fact by affirmative evidence.

TEd. Yote.--For cases in point, see Cent. Dig voi. 17, Basements, $ 89.] 3. EVIDENCE-WEIGIIT.

Where a hostile witness uses expressions favorable to the side he opposes, the court may properly attach more importance thereto than to the main purport of his narrative.

Department 1. Appeal from Superior Court, Solano County; A. J. Buckles, Judge.

Action by David V. Fleming against Annie IIoward and others. From an order deny. ing defendants' motion for a new trial, they appeal. Affirmed.

Sullivan & Sullivan, Theo. J. Roche, and H. D. Gill, for appellants. Frank R. Devlin, for respondent.

motion for a new trial, and they are therefore to be considered as though this record contained only the judgment roll without the evidence.

1. The objection made to instruction No. 10 is that it does not submit a correct rule or standard for determining the amount of damages. Whatever may be the decisions in other jurisdictions as to the correctness of such an instruction, it has been condemned by this court, and the giving of such an instruction has been declared to be prejudicial error. In Brunell v. Cook, 13 Mont. 497, 31 Pac. 1015, a similar instruction was given, and, on appeal, this court said in effect that such an instruction submits to the jury the gross earnings of the property as the measure of damages for its wrongful detention, whereas the actual damages is all that should be recovered. In other words, from the gross earnings of the property there should be deducted the expense, if any, of feeding and caring for the property. For 13 years the rule announced in Brunell v. Cook has remained the law of this state upon the subject, and we are not now inclined to ciepart from it. Accepting that doctrine, then, this instruction is erroneous in any view of the case.

2. We think the court should have given plaintiffs' requested instruction. It correctly states the law, and is applicable to the issues made; and, since the jury returned a verdict in favor of the defendants for rama ges for the wrongful detention of the property by plaintiffs, it must likewise have been apapplicable to the facts disclosed by the evidence.

We have examined the other assignments made, but do not find any merit in any of them. There appears to have been no error committed in determining the issue as to the ownership of the property. The errors with respect to the instructions mentioned above go to the question of damages. Therefore, following further the rule in Brunell v. Cook, this cause will be remanded to the district court, with directions to grant a new trial of the issue as to defendants' damages for the wrongful detention of the property by plaintiffs, unless the parties can agree as to the amount for which the judgment for damages should be entered.

When this issue is determined, the judg. ment will be modified accordingly.

SILAW, J. The sole question presented in this case is the sufficiency of the evidence to sustain the finding that the plaintiff's predecessors in interest acquired by prescription the private right of way involved.

The case comes within the well-known rule that this court is bound by a decision of the lower court upon conflicting evidence. There was evidence to the effect that the road, or way, across the defendants' land, had been used in connection with, and for the benefit of, plaintiff's land, continuously and without interruption, from the year 1871 down to 1902, immediately before the action was begun. There was no dispute over the fact that the use was continuous during this period. It was also shown that during at least the last 27 years of the time gates were maintained and kept in repair by the owners of plaintiff's land at each end of the way; one of them being placed in the fence belonging to the defendants. The testimony on behalf of the plaintiff was to the effect that the use, during the entire period, was undisturbed. That it was adverse in its inception is not denied. Casey, who was the owner of the plaintiff's land from 1875 until June, 1902, testifying for the defendants, said, in substance, that during the first three years of his ownership he used the way under a claim of right. If the testimony on behalf of the defendants is disregarded, or only those parts are accepted which tend to confirm the plaintiff's case, as some parts of it do, the fact is clearly established that there was an open, visible, continuous, and unmolested use of the way for more than 30 years prior to the beginning of the action. Under these circumstances it will be presumed that the use was under a claim of right, and adverse and a prima facie title by prescription is thereby estab

BRANTLY, C. J., and MILBURN, J., concur.

(150 Cal. 28) FLEMING V. IIOWARD et al. (Sac. 1,3.78.) (Supreme Court of California. Oct. 11, 1906.) 1. APPEAL - CONFLICTING EVIDENCE FINDINGS-REVIEW'.

A finding of the trial court based on conflicting evidence will not be reversed on appeal.

Ed. Note.-For cases in point, see Cent, Dig. voi. 3, Appeal and Error, $ 3983.]

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