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[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Quieting Title, § 100.]

Appeal from District Court, Weber Coun ty; J. A. Howell, Judge.

Suit by Lee Richey against Marion Beus. From a decree for plaintiff, defendant appeals. Affirmed.

This is an action to quiet title to a right This is an action to quiet title to a right of way. Plaintiff alleges in his complaint: (1) That he is the owner and entitled to the possession and use of sufficient water from certain springs which are situated northeast from defendant's residence in Weber county, Utah, to fill a one-inch pipe; that he is the owner of a pipe line extending from said springs through and across defendant's land (describing it) to plaintiff's residence, and that he has a right or easement to enter upon the said land and along the line of the aforesaid iron pipe for the purpose of keeping same in repair and full of water. (2) That on August 5, 1903, the defendant brought an action in this court (the district court of Weber county) against the plaintiff herein asking that plaintiff be perpetually enjoined from entering in and upon the real estate described, and for other relief. (3) That at the time and during the pendency of said action plaintiff was informed and believed that the water right, right of way, and appurtenances described had been conveyed to him by a good and sufficient deed from one J. J. Cortez, who at that time was the owner thereof, and that, relying upon said information and belief, said action was brought to trial and heard on October 13, 1903, and a decree rendered perpetually enjoining said plaintiff from entering upon said lands. (4) That at said trial it was discovered that the right of way to enter upon said land and repair said pipe, together with the appurtenant right to obtain sufficient water from said springs to fill said pipe had not been conveyed by the deed theretofore executed by said J. J. Cortez to plaintiff. (5) That immediately after the rendition of said decree the said J. J. Cortez, by his deed dated October 12, 1903, conveyed to the plaintiff herein the right to enter upon the said land to maintain and repair the said pipe, which he duly recorded in the recorder's office in Weber county, Utah. (6) That defendant is claiming that said decree forecloses plaintiff from exercising his rights under said deed, and that by reason thereof the said decree acts as a cloud upon his title. The complaint concludes with a prayer that said decree be modified so as to permit plaintiff

to enter at all reasonable times upon said land to repair said iron pipe and to protect and control sufficient water from said springs, and that his title to said rights may be quieted as against the defendant, and for general relief. Defendant demurred to the complaint on the ground that it does not state a cause of action. The demurrer was overruled, and defendant in his answer pleaded the judgment in the former suit as a bar to this action.

The findings of the court, so far as material here, are as follows: "That the said Lee Richey, at the time of the rendering of

the decree in the first above-cntitled action,

That subse

predicated his title thereto on a certain deed
and contract from one John J. Cortez to him,
whereby there was conveyed to the said Lee
Richey the aforesaid pipe line and water
right, but failed to convey to the said Lee
Richey the right to enter for the purpose of
repairing the said pipe line.
quent to the rendering of the decree above
mentioned, on or about the 12th day of Oc-
tober, 1903, the said J. J. Cortez did by deed
convey to the said plaintiff the right to enter
upon the said land, along the line of said
pipe, and repair the said pipe and to keep
the said pipe full of water, which said deed
was duly recorded in the recorder's office of
Weber county, Utah. That said J. J. Cortez
was the owner prior to the said two deeds
and conveyances last above mentioned of the
said water right, pipe line and right to enter
on said land along the line of said pipe, and
repair the said pipe line and to keep the said
pipe full of water, and that the said J. J.
Cortez, by the two deeds, conveyed all his
right, title, and interest in the said property
to the said plaintiff here, Lee Richey, who is
now the owner and entitled to the possession
thereof, but shall not change the location of
said pipe line on defendant's land. That the
said pipe line and water right has been in
continuous use since its said construction by
the said plaintiff, Lee Richey, and his pred-
ecessors in interest."

As conclusions of law the court found: (1) That plaintiff is entitled to a decree modifying the judgment entered in the former suit hereinbefore mentioned by eliminating therefrom the injunctive provisions whereby plaintiff is restrained from entering upon defendant's premises along the pipe line in question. (2) That the cloud caused by said judgment now existing upon plaintiff's title to said pipe line and right of way be removed. (3) "That the said Marion Bues be and she is perpetually enjoined from digging any ditches upon her said land which will have the effect of interfering with or obstructing the flow of water of said springs so as to prevent said one-inch pipe being kept full of water at all times, or in any manner to do anything upon the said land which will have that effect." A decree was

entered in accordance with the foregoing conclusions of law. To reverse this decree defendant has appealed to this court on the judgment roll.

Appellant alleges that the court erred in the following particulars: (1) In overruling defendant's demurrer to the complaint. because said complaint shows on its face that the matters therein set up had already been adjudicated. (2) In the conclusion of law wherein it is held that defendant should be perpetually enjoined from digging any ditches upon her lands which will have the effect of interfering with or obstructing the flow of water from the springs on said land so as to prevent plaintiff's one-inch pipe being kept full of water at all times. (3) In rendering judgment in accordance with the foregoing conclusions of law.

J. N. Kimball and Thomas Maloney, for appellant. W. L. Maginnis, for respondent.

MCCARTY, C. J., after making the foregoing statement of the case, delivered the opinion of the court:

The complaint shows on its face that plaintiff acquired the title upon which he bases his right for recovery since the rendition of the judgment in the former suit, and which, defendant claims, is res adjudicata. According to the rule as laid down by the great weight of authority, the judgment in the former suit only determined the rights of the parties up to the time it was rendered, and cannot prevent plaintiff from recovering on his subsequently acquired title. Wells on Res Adjudicata and Stare Decisis, § 332, the author tersely and, as we think, correctly states the rule as follows: "When one fails to establish and afterwards acquires a new, or partially new, title, the former action does not debar him from seeking to recover on the subsequent acquirement. former judgment merely settled the fact of title at the time it was rendered; but the second suit relies on a different title and so is in reality not on the same issue." The following authorities also declare the same doctrine: Perkins v. Parker, 10 Allen (Mass.) 22; McKissick v. McKissick, 6 Humph. (Tenn.) 75; Taylor v. McCrackin, 2 Blackf. (Ind.) 261: 24 A. & E. Ency. L. (2d Ed.) 777; 9 Ency. Pl. & Pr. 624. Applying the law of res adjudicata as announced by the foregoing authorities to the facts alleged in the complaint in this case, we are of the opinion, and so hold, that the demurrer is without merit and was properly overruled.

The

It seems that the trial court and the parties to the suit treated it as an action brought to modify a judgment, whereas it is essentially an original action to quiet title. We must look to the allegations of the complaint in determining the character of the action, and not to what attorneys may label or call it. No facts are alleged showing fraud, mistake. surprise, accident, or anything else connected

with the bringing of the former suit, or with the trial thereof upon which to base a decree modifying the judgment rendered in the former case. The facts alleged are sufficient, however, to support a decree quieting plaintiff's right and title to an easement in and across the premises mentioned for the purpose of enabling him to maintain and keep in repair his pipe line. A court of equity. in an action to quiet title, may, under a general prayer for relief, not only enter a judgment quieting plaintiff's title when the facts warrant it, but, in a case such as the one at bar, where the right to occupy and use lands. for a specific purpose is in controversy, may include in the judgment a general order, restraining the defendant from asserting any claim adverse to and in derogation of plaintiff's right, and may also prohibit the defendant from doing any act that would tend to impair or destroy such right. It must be

conceded that if the decree were modified, and the injunctive provisions eliminated therefrom, the defendant would be legally bound to respect plaintiff's rights as defined and fixed by the decree so modified, and that, for any invasion of such right by defendant to the injury of plaintiff, the latter would have a right of action, and under a proper proceeding, could obtain precisely the same relief as is given in this case. Therefore we do not think the court exceeded its power in granting injunctive relief, and thereby terminating the litigation. The general rule as declared by the more recent authorities is that "on a final hearing the court may decree a perpetual injunction if it is necessary for the purpose of complete justice, although not prayed for in the bill." 10 Ency. Pl. & Pr. 962 and cases cited; 2 Spelling, Extra Relief, 998; 2 High on Injunctions, 1573; Power v. Athens, 99 N. Y. 592. 2 N. E. 609; Webster v. Harris, 16 Ohio, 490.

The judgment is affirmed with costs.
STRAUP and FRICK, JJ., concur.

(34 Mont. 513)

PASSAVANT v. ARNOLD. (Supreme Court of Montana. Dec. 4, 1906.) APPEAL RECORD QUESTIONS PRESENTED SUFFICIENCY OF EVIDENCE-CERTIFICATE.

Where there is no recital in the statement nor in the certificate of the judge and the narrative of the proceedings is not so connected as to enable the court to say from an examination of it that it affirmatively appears that all or the substance of all the evidence is incorporated in the statement, its sufficiency cannot be reviewed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2916.]

Appeal from District Court, Lewis and Clarke County; J. M. Clements, Judge.

Action by Walter Passavant against Walter W. Arnold. From a judgment and from an order denying a new trial, defendant appeals. Affirmed.

T. J. Walsh and Bach & Wight, for appellant. Word & Word, for respondent.

BRANTLY, C. J. This action was brought This action was brought to obtain a judgment quieting the title to the use of certain of the waters of Spokane Creek in Lewis and Clarke county. The right in controversy is based upon an appropriation of 180 inches made by the defendant, which plaintiff claims he now owns under certain conveyances from defendant. One of these purports to convey a right to the use of 110 inches, statutory measurement, out of the headwaters of the stream and its upper tributaries, and was made directly to the plaintiff. As to the effect of this conveyance there is no controversy. The claim to the remainder of the right rests upon the construction of a certain bond for a deed executed by defendant to one Rohde to certain lands, together with one-half of the water and water right at the head of defendant's ditch, of a deed by defendant to one Semenec who became the assignee of the bond, and a deed from Semenec to the plaintiff. The bond referred to was executed prior to the date of the deed to the 110 inches, but the latter was taken without notice, and was first recorded. The issue tried was whether the defendant still owns one-half of the interest remaining after the first deed was executed. The plaintiff, pleading and relying upon a final judgment rendered by the district court of Lewis and Clarke county on July 2, 1897, in a cause wherein the defendant was plaintiff and the plaintiff herein was one of the defendants (Arnold v. Passavant, 19 Mont. 575, 49 Pac. 400), by which the priorities of the respective rights of the parties to the use of the waters of the stream as they then existed were determined, assumed the position that the terms of these conveyances are clear and unambiguous, and that defendant was estopped by the judgment referred to, to dispute his right asserted under them. Defendant assumed the position that the terms of these conveyances are indefinite and ambiguous and, if construed and applied to the subject-matter in the light of the attendant circumstances, they would sustain his claim of title. The court, upon the evidence adduced, found the issue in favor of the plaintiff. The defendant has appealed from the judgment and an order denying him a new trial. The sole question submitted by him is whether the evidence justifies the findings. He is met by an objection by plaintiff that this question cannot be considered, for the reason that it does not appear affirmatively that the record contains all of the evidence.

On appeal the presumption is that the action of the trial court is correct, and in order to overturn its judgment or decision it is incumbent upon the appellant to show affirmatively that error has been committed. Rumney L. & C. Co. v. Detroit & Mont. C. Co., 19 Mont. 559, 49 Pac. 395. If substan

tial error is made apparent, prejudice will be presumed unless the record shows affirmatively that such error is not prejudicial. Parrin v. Montana C. Ry. Co., 22 Mont. 290, 56 Pac. 315. If the error alleged is one of law, the record must show affirmatively the objectionable ruling, together with so much of the attendant proceedings as will make it apparent. If the ruling or decision does not belong to the class to which the statute reserves an exception (Code Civ. Proc. § 1151), the record must show an exception, properly reserved at the time by the appellant himself. If the error complained of be that the evidence is insufficient to sustain the findings or verdict, this court cannot upon a review of the decision declare it erroneous unless the record contains all the evidence, incorporated therein as prescribed by the statute, and that it does so should affirmatively appear (State v. Shepphard, 23 Mont. 323, 58 Pac. 868; Ramsey v. Burns, 27 Mont. 154, 69 Pac. 711; King v. Pony Gold M. Co., 28 Mont. 74, 72 Pac. 309); for the functions of this court being confined to a review of the proceedings had in the district court, the record in relation to the matter upon which review is sought, must be the same, so far as may be, as that upon which the district court acted. That it is the same this court cannot know except by affirmative proof, for the presumptions in this regard do not aid the appellant. To hold otherwise would be to disregard entirely the presumption of the correctness and regularity in favor of the particular ruling. The proof should be made by recital in the record itself.

Section 1155 of the Code of Civil Procedure provides what the certificate of the judge attached to the bill of exceptions or statement shall contain. It does not authorize any other statement than that "the same (the bill) is allowed." In State v. Shepphard, supra, it is said: "Where the bill of exceptions itself it relied on to show the insufficiency of the evidence, it should either set forth in express language that all the evidence, or the substance thereof, or so much thereof as is necessary to illustrate the point relied on, is all incorporated in the bill, or it should contain statements equivalent to such expressions, or it should show a whole connected narrative, so constructed that it clearly appears that all the material evidence, or the substance thereof, is incorporated in the bill." In another place in the opinion it is said, in substance, that it is sufficient if it appears from the certificate of the judge that the whole of the evidence is in the record. In view of what the statute provides, we doubt the technical correctness of this statement, and if this question were an open one we should hold differently. Inasmuch, however, as it is frequently the practice to have the judge certify that the record contains the evidence, encouraged no doubt by the statement referred to, we shall not now say that such practice is bad. The bet

ter rule is that the statement or bill itself should contain recitals showing unequivocally the fact. This court went to the extreme limit of liberality in the case of State v. Shepphard, and if, as suggested therein may be done, the moving party undertakes to construct a narrative of the proceedings so connected as to show affirmatively that the record contains all the evidence, he does so at his peril. It is much easier and safer to have an express recital in the bill or statement itself. In this case we find no recital in the statement; nor does the certificate of the judge refer to the evidence. The narrative of the proceedings is not so connected as to enable us to say from an examination of it, that it affirmatively appears that all, or the substance of all, the evidence is incorporated in the statement. For this reason the objection of respondent must be sustained.

Action by Haggerty Bros. against Lash & Shaughnessy. From a judgment for defendants, plaintiffs appeal. Reversed.

Joseph J. McCaffery and H. W. Rodgers, for appellants. W. H. Trippet and J. H. Duffy, for respondents.

HOLLOWAY, J. This is an action in claim and delivery brought by the plaintiffs, Haggerty Bros., to recover the possession of certain personal property consisting of horses, wagons, etc., and for damages for the wrongful detention of the same. The complaint is in the usual form. The answer denies plaintiffs' title or right of possession to the property, and sets forth that on August 29, 1904, plaintiffs and defendants entered into an agreement in writing by the terms of which defendants purchased the property in controversy from the plaintiffs 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.

Affirmed.

MILBURN and HOLLOWAY, JJ., concur.

(34 Mont. 517)

HAGGERTY BROS. v. LASH & SHAUGHNESSY.

(Supreme Court of Montana. Dec. 4, 1906.) 1. APPEAL-RESERVATION OF GROUNDS FOR REVIEW-MOTION FOR NEW TRIAL.

Where assignments of error in appellant's brief in the giving and refusal of instructions are not made in plaintiff's statement on motion for new trial, they will be considered as though the record contained only the judgment roll without the evidence.

[Ed. Note. For cases in point, see Cent., Dig. vol. 2, Appeal and Error, § 1697.]

2. REPLEVIN-WRONGFUL TAKING-DAMAGES. In an action of claim and delivery, an instruction that the jury should assess defendant's damages for a wrongful taking at the value of the use of the property from the time of the taking to the present time was erroneous, as the jury should have been told to deduct from the earnings of the property any expense in caring for it.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Replevin, § 357.] 3. SAME.

In an action of claim and delivery in which defendants denied plaintiff's title and claimed damages for wrongful taking, plaintiff was entitled to an instruction that a party who claims compensation for an alleged wrong must show not only that he suffered a loss, but what was the amount of the loss, and the burden of prov ing both was on the party alleging the wrong. 4. APPEAL-DISPOSITION OF CAUSE-REVERSAL.

Where, in claim and delivery, no error was committed in determining the issue of ownership, but erroneous instructions on the question of damages were given, the appellate court will remand the cause, with instructions to grant a new trial of the issue as to damages only, and to have the judgment modified accordingly.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4614, 4615.]

Appeal from District Court, Deer Lodge County; Geo. B. Winston, Judge.

haul 3,000,000 feet of lumber for plaintiffs, for which they were to receive $2.50 per thousand feet. The answer then alleges that defendants paid two installments on the purchase price of the property, but that on December 11, 1904, plaintiffs, in violation of the agreement, wrongfully compelled defendants to cease work, and thereby prevented them The from fully carrying out the contract. answer further alleges that on January 11, 1905, the plaintiffs wrongfully and maliciously caused the property to be taken from the possession of the defendants, to their damage in the sum of $25 per day. The reply admits the execution of the contract of August 29, 1904, and that defendants paid $150 on the purchase price of the property. Every other allegation in the answer is denied. Upon the trial the court gave instruction No. 10, as follows: "If you find for the defendants in this action, you will assess their damages at the value of the use of the property taken by the plaintiffs from the time of the taking of the same, to wit, January 17, 1905, up to the present time." And refused to give an instruction asked by the plaintiffs, as follows: "The court instructs the jury that a party who claims compensation for an alleged wrong done must show, not only that he has suffered a loss on account of the injury, but also what was the amount of the loss, and the burden of proving both these things is upon the party alleging the wrong." The jury returned a verdict in favor of the defendants for the return of the property, and for $300 damages for the wrongful taking and detention of it by the plaintiffs, and judgment was entered in accordance with the verdict. From this judgment and an order denying their motion for a new trial, the plaintiffs appeal.

In their brief appellants make these among other assignments of error: (1) The giving of instruction No. 10; (2) the refusal of the court to give plaintiffs' requested instruction above. These assignments, however, are not made in plaintiffs' statement on

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, 34 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 depart 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 damages 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.

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

concur.

(150 Cal. 28)

FLEMING v. HOWARD et al. (Sac. 1,358.) (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, § 3983.1

2. EASEMENTS-ADVERSE USE-PRESUMPTIONS -BURDEN OF PROOF.

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 sufficient 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.

Ed. Note.-For cases in point, see Cent. Dig voi. 17. Easements, § 89.]

3. EVIDENCE-WEIGHT.

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 M. Fleming against Annie Howard and others. From an order denying 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.

SHAW, 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

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