Harris v. Shontz

Symes, J. This was an action for damages for the diversion of water, and asking for a decree of title and perpetual injunction. Plaintiff alleged that he was the owner of certain mining ground and a water ditch, which conveyed two hundred inches of water to the same ; that he had a prior right to the water; that defendants wrongfully diverted the said water to plaintiff’s damage $500; that defendants threatened to continue the diversion, which would cause great and irreparable injury to plaintiff, and were unable to respond in damages. Defendants answered and denied the ownership of the ditch, and prior rights to the use of the water ; denied that plaintiff had sustained damage in any sum; denied that diversion would cause irreparable injury. Further answered and set up title in the water by right of appropriation and agreement of defendants. The case was tried at the November term, 1869, and the following verdict found for the plaintiff, viz. : “We, the jurors, do find the plaintiff entitled to one hundred and fifty inches of the water in Washington gulch.” The court on this verdict rendered judgment for costs against the defendants, and decreed the title to one hundred and fifty inches of water in the plaintiff, and perpetually enjoined the defendants from interfering therewith. The defendants excepted to the entry of judgment and decree on the verdict, moved for a new trial, which motion was overruled, and appealed to this court. Does the verdict or finding of the jury in this case support the judgment and decree % The jury find for the plaintiff upon the material issue of title to the water. There is [216] no denial that defendants did divert, continue to divert, and threatened to continue to divert the water. The paragraph of the answer purporting to deny the diversion is as follows, to wit: “Denies that the said defendants and their servants and employees did on said 1st day of April, 1869, and ever since said date, have continued, 'wrongfully and illegally, to divert the water of said Washington creek by means of a certain ditch owned and possessed by defendants.” Denying that they diverted it wrongfully and illegally is pregnant with the admission that they did in fact commit the act of diversion. The allegations of irreparable injury and insolvency were not necessary to be found by the jury. The plaintiff set up title to water, and asks that title be decreed to him; and alleged that defendants diverted and threatened to divert the same. The trespass complained of, the diversion of the water, the continuing and threatened continuance thereof, not being denied, the admissions in the pleading and the finding of the jury will support the judgment and decree. The title to the water being found in the plaintiff, and the defendants’ admission that they threatened to continue to divert it, entitled the plaintiff to a decree of title and injunction. The defendants objected to the judgment for costs being entered because the plaintiff did not recover $50 or more damages. The gist of the action appears to be the title, or prior right to the use of the water; the diversion is admitted 'by defendants, but they deny the title to the water; upon this issue alone the cause was tried, and the plaintiff’s recovery of the water entitles him to costs. Order of the court overruling motion for new trial is affirmed. Exceptions overruled.