Walker v. McGinness

AILSHIE, J. This case was before this court and the judgment of the lower court was reversed oh June 13, 1902, and! that opinion is found in 8 Idaho, 540, 69 Pac. 1003. The trial court was there instructed “to make findings of fact and conclusions of law in accordance with the views expressed in this opinion, and enter judgment as prayed for in the complaint.” Thereafter and on December 24, 1902, and in pursuance of the directions of this court, the district judge made and filed his “Corrected Findings of Fact and Conclusions of Law,” and thereupon entered what is designated a “Modified Judgment and Decree.” From such judgment defendant again appeals to this court. Eespondents have moved to dismiss the appeal herein upon the164 grounds,'“that no sufficient undertaking on appeal has been filed iji said-cause.” The appeal, as recited in the notice thereof, is from!the judgment and the whole thereof, while the undertaking on appeal, as shown by the certified copy attached to the motion, recites that the same is given upon an appeal from a judgment against defendant for costs in the sum- of $388.40. The undertaking on appeal is not in conformity with the notice of appeal, and we think the motion is well taken. (Stockton School Dist. v. Goodell (Cal.), 56 Pac. 885; Bennett v. Bennett, 42 Cal. 629.) In view, however, of the fact that this case is here for the second time, and that the only question involved in this ap* peal is the sufficiency of the modified judgment, we have concluded to pass upon the appeal on its merits. The judgment follows the prayer of the complaint as directed by this court and orders and decrees: “That the defendant, Daniel McGinness, his servants, etc., be, and they and each of them are hereby enjoined and restrained from in any manner changing his point of diversion of the waters of Cold Spring creek .... to any point on said creek below his former point of diversion,” etc. This is followed by a description of the former point of diversion. It is insisted by appellant that this decree adjudicates nothing and is only an order of injunction. Strictly speaking,, this would seem true, but it will be seen from the statement contained in the former opinion of this court that on August 10, 1891, a decree was entered adjudicating the respective rights between the defendant in this action and the predecessors in interest of plaintiffs herein. The only purpose of this present action was to restrain and enjoin the defendant from changing his point of diversion, as designated in the decree of August 10, 1891. The findings of fact and conclusions of law are full and explicit and the decree follows the conclusions by enjoining the defendant from changing his point of diversion to any other point down the creek from that originally designated. We think the decree so entered is sufficient. Upon the oral argument it was urged by counsel for - appellant that the judgment is in conflict with section 3157, Devised [165] Statutes, which provides that the person entitled to the use of any water may change the place of diversion, if others are not injured by such change. We cannot see wherein the judgment conflicts with said statute — if the change attempted to be made by defendant was not injurious and prejudicial to the rights of plaintiffs, this judgment could not and would not have been granted. If, as suggested in the argument, the conditions under which this perpetual injunction is granted should so change as to make it no longer injurious or prejudicial to the rights of plaintiffs for defendant to change his place of diversion, he may then have his remedy by proper proceedings for such relief. Judgment affirmed, with costs to respondents. Sullivan, C. J., and Stoekslager, J., concur.