Murry v. Nixon

AILSHIE, J. (After Making the Statement). — The defendant did not demur to the complaint, but answered, and the case was tried without any objection to the sufficiency of the complaint. While this complaint may have- contained defects which could have been pointed out by special demurrer, we are satisfied that it is sufficient to state a cause of action in the absence of any such objection. The views of this court on a somewhat similar objection of a more serious nature than the one involved in this case were expressed in Hollister v. State, 9 Idaho, 651, 77 Pac. 339. It is argued that the findings are insufficient to support the judgment, for the reason that they do not fix the exact situs or location of the right of way one hundred feet wide to which it is sought to quiet the title. The description of the premises contained in the decree follows the descripr tion contained in the findings. It will be noticed that the court refers to certain plats and maps, certified copies of which were on file in the case, for a specific and complete description of the property, and by reference, made the maps a part of the findings. Appellant’s chief objection to this is that no map or plat is made a part of the findings or judgment by being incorporated therein, and that no map or plat is referred to by any identification whereby a person could ascertain the particular map or plat. A map is brought up as a part of the record by stipulation between counsel, showing the exact location of the right of way and pipe-line claimed by the plaintiff, which map is drawn to a scale and contains all the angles and measurements necessary to definitely locate the same. This map is one of the files in the case in the trial court. It is claimed, however, by appellant that there were other maps and plats on file with rei-erence to the same tract of land and right of way, and that from 617 the findings and judgment it cannot be ascertained which particular map is referred to. It is to he presumed that all the maps and plats which were properly introduced in the case had reference to the particular right of way and pipe-line in controversy, and since it could he located at but one definite place, it must necessarily follow that all the maps and plats on file in the ease were in harmony with each other and gave the property the same location rather than different locations. On this point-appellant cites us to Crosby v. Dowd, 61 Cal. 557, but what-was said there with reference to description is scarcely applicable here for the reason that that was an ejectment case; but the doctrine announced in that case has been repudiated by the-California court in the later cases of De Sepulveda v. Baugh, 74 Cal. 470, 5 Am. St. Rep. 455, 16 Pac. 223, and In re Madera Irr. Dist., 92 Cal. 296, 27 Am. St. Rep. 106, 28 Pac. 272, 675, 14 L. R. A. 755. We think in this case the description is not so defective as to justify a refusal of the judgment. The practice, however, of referring to extraneous matters in the findings- and judgment for definite description, or any other matter that-should be contained in the findings and judgment, is one which should be discouraged. We think the trial courts should incorporate all such matters in their findings and judgments without making any reference whatever to any matters not therein contained, and by so doing much of this character of discussion and this class of appeals would be avoided. Counsel for the respective parties have gone quite exhaustively into the question of the kind, character and extent of the title which plaintiff acquired to this right of way, and have discussed the question as to whether the same was a fee or only a specific easement. The evidence has not been brought before us, and for that reason we do not think we are at liberty to enter into a discussion of those questions. This appeal only brings up the judgment-roll, and since we find no error therein, the judgment must be affirmed, and it is so ordered. Costs awarded to respondent. Stockslager, C. J., and Sullivan, J., concur.