Landers v. Joerger

ROSS, J. The proceeding in this court is being prosecuted in two ways at the same time. The first record came here on appeal from the judgment. Subsequently it was brought here by writ of error. The appeal is asked to be dismissed for the reason that it is not taken from the order overruling the motion for a new trial. The motion to dismiss for that reason is not tenable. In no case has this court decided or intimated that an appeal from the order overruling motion for a new trial was necessary to confer jurisdiction of the ease in this court. On the contrary, the court has always taken jurisdiction of the case on appeal from the judgment only. The extent of our holding has been that an appeal from the judgment only limited or restricted our right of review. The motion to dismiss the appeal is overruled. There is also a motion to dismiss the writ of error proceeding, based upon various grounds. The right to have the case reviewed by this court upon one or the other proceeding is evident. But, as we understand the law, while a valid, subsisting appeal is pending in this court, no other proceeding in the nature of an appeal or writ of error can be prosecuted. 2 Cyc. 523. It is our opinion that the writ of error proceeding should be dismissed. We will consider the case as upon appeal. The appeal is, as before said, from the judgment only. The appellant has filed two briefs in each ease. They are identical, except in the number they bear. In the first brief there is no assignment of error whatever, but a general discussion of the facts and the law deemed applicable to the facts. In the second brief, which is denominated an “amended and supplemental brief for appellant and plaintiff in error,” there appears what was inteuded as an assignment, which is as follows: “The [482] court erred in holding that the defendant, Landers, ever abandoned the use of the waters of the Barbacomari creek for irrigation of the lands occupied by him within the Barbacomari grant, and in holding that the right of the defendant [plaintiffs] to the use of the waters of said Barbacomari creek is prior and superior to the right of the defendant, Landers. ’ ’ Now, this general statement, when reduced to its final analysis, simply means that the court gave the wrong judgment. There is an entire absence of any suggestion as to why it was not a correct judgment. Taking this assignment as a premise, it could be argued that the court was without jurisdiction of the subject matter or parties; or that the complaint failed to state facts sufficient to constitute a cause of action; or that improper evidence was admitted or competent evidence rejected; or that the evidence fails to support the findings of fact; or that the findings of fact fail to support the judgment; or that the judgment is outside the issues. One of these is as definitely indicated by the assignment as any other error that might be named or imagined resulting in an erroneous judgment. It is really no such assignment of error as is required by the law and the rules of this court. By the rules of this court it is provided: “All assignments of error must distinctly specify each ground of error relied upon, and the particular ruling complained of.” Buie 8, subd. 1, Buies of Supreme Court (14 Ariz. xliii, 126 Pac. xi). Paragraph 1586, Bevised Statutes of Arizona of 1901, as amended by section 21, chapter 74, Laws of 1907, provides that the brief and argument of appellant “must plainly state the errors complained of by him.” It is only by an examination of the appellant’s argument that we ascertain that his assignment is directed at the insufficiency of the evidence to support the judgment. While, under the law as it formerly stood, and as held by this court in Miami Copper Co. v. Strohl, 14 Ariz. 410, 130 Pac. 605, and Arizona Eastern R. R. Co. v. Globe Hardware Co., 14 Ariz. 397, 129 Pac. 1104, the appellant, in appealing from the judgment only, as in this case, invoked a review ,by this court of the judgment-roll alone and certain intermediate orders, and rulings affecting the merits of the case when properly preserved in the record, in the more recent case of Steinfeld v. Nielsen, ante, p. 424, 139 Pac. 879, it was held [483] that the legislature had extended the scope of review upon an appeal from the judgment only to an order overruling a motion for a new trial. We think the status of this case brings it within the rule laid down in Steinfeld v. Nielsen, and, upon a proper assignment of error, it would be our duty to examine the evidence to determine if it supports the judgment. Neither the order overruling the motion for a new trial, nor any of the grounds set forth in the motion, is assigned by appellant as error. Under these circumstances, we think we should confine ourselves principally to an examination of the issues and the findings of fact, and, if the judgment follows the one, and is supported by the other, affirm it. The contest, as shown by the pleadings, was over the ownership of certain waters of Barbacomari creek. The appellant’s first appropriation was made in 1894, the appellees’ in 1906 and 1908, as pleaded and found by the court. It is also found by the court that appellant, in 1908, abandoned the land he had theretofore occupied and irrigated, and ceased to use the waters, except in small and insignificant quantities until in 1912, when he attempted (not in pursuance of his former use and occupancy) to initiate a new and different appropriation of said waters. Appellant was not the owner of the land that he had been irrigating on the Barbacomari grant. He was a mere “squatter” on the grant, and in 1908 the owners thereof obtained a judgment of ouster against him. In June of that year he moved from the place, and took with him all his personal effects and dismantled the house in which he had been living, leaving only the parts of it that could not be used again upon a homestead that he had taken up off the grant. In fact, he removed everything from the grant that was of practical use in his new home; even transplanted some of the fruit trees. The question as to whether appellant had abandoned the waters or not is peculiarly one for a jury, or the court sitting as a jury. Kinney on Irrigation and Water Rights, section 1116, volume 2, says: “As to whether or not a water right, the water itself, the ditch, canal or other works have actually been abandoned or not depends upon the facts and circumstances surrounding each particular case, tending to prove the essential elements of an abandonment, namely, the intent and the [484] acts of the party charged with abandoning such a right. In other words, it is a question of fact, to be determined by the jury, or by the court, sitting as such.” The purpose of the owners of the grant in prosecuting their suit against appellant was to have it adjudged that he was occupying and cultivating their lands without legal right. The court, by its judgment, so found. He immediately removed his family from the premises and located on other lands some miles distant. It was for the trial court to say whether, in leaving the premises, he did so with the intention of abandoning his water right, the water itself, the ditches, and other works. Our labors in this case have been greatly augmented by reason of the failure of appellees to file any brief whatever on the merits. Writ of error dismissed. Judgment on appeal affirmed. FRANKLIN, C. J., concurs.