Seamons v. Davis

DUNN, J. Appellant brought this action to recover $1,000 damages for alleged shortage of water occasioned by the failure of defendants to convey title to water sufficient to irrigate twenty acres of land according to the terms of a certain deed made by respondents to appellant. The case [395] was submitted to a jury and a verdict rendered giving appellant $800. Respondents moved for a new trial on tbe ground of the insufficiency of the evidence to justify a verdict and errors in law occurring at the trial and excepted to by the defendants. The motion was granted and this appeal was taken from the order granting it. Appellant assigns and relies upon this error: ‘ ‘ The court erred in granting defendants’ motion for a new trial.” We have carefully examined the record in this case and find a substantial conflict in the evidence. The trial court heard and saw the witnesses testify and observed their demeanor on the witness-stand, and it does not affirmatively appear from the record that the court erred in granting a new trial. Under the repeated decisions of this court the action of the trial court in such case will not be disturbed on appeal. (Cox v. Cox, 22 Ida. 692, 127 Pac. 679; Baillie v. City of Wallace, 22 Ida. 702, 127 Pac. 908, and cases cited in both of these decisions.) Judgment affirmed. Costs to respondent. Rice, C. J.', and McCarthy and Lee, JJ., concur. Budge, J., did not sit at the hearing and took no part in this decision.