Rogers v. Cook

MINER, J.: This action was brought by the plaintiff against the defendant to determine his right to one-sixth of the waters of Alta ditch. Plaintiff claims one-twelfth of the water as an original appropriator about the year 1880, and the remaining one-twelfth by purchase from Isaac McEwin in 1888. The defendants concede the right to the twelfth obtained by purchase, but deny that plaintiff obtained any water by appropriation; so that the only question involved is whether plaintiff appropriated one-twelfth of the water he claims. The trial court accorded plaintiff one-sixth of the water of Alta ditch, and from this order and decree the defendant appeals, and alleges insufficiency 126 of the evidence to justify the decree, errors occurring at the trial, and newly-discovered evidence. We have, examined the evidence as set out in the record and find a substantial conflict in the testimony; and therefore this court will not review the question as to the insufficiency of the .evidence to support the findings. Slater v. Cragun, 7 Utah, 412, 27 Pac. Rep. 5. On the trial, Roswell Rogers, son of and a witness for the plaintiff, testified that he had worked assessments on the Alta ditch for his father during the six years prior to 1888. This was denied - by the defendants. The witness stated in answer to a question on cross-examination that he worked for W. K. Henry on Mr. Moore's farm in 1886; that he did not remember telling Henry “that we. had an interest in the. Alta ditch at one time, but that we did not keep up the assessments, and that the assessments had eaten it up long ago." Mr. Henry testified for the defendants, and was asked whether or not Roswell Rogers had made this statement to him. The question was objected to, and the court stated that it was not material, but he would let it go on the record, to which defendants excepted. While the court did not rule directly upon this question, it was apparent that it did not consider the testimony of any value, and the mere letting it go on the record was of no value to the defendants. I think the testimony was material. It tended to contradict the witness on a material point. The ruling could only be regarded as sustaining the objection of plaintiff. The same witness, Roswell Rogers, also stated, in answer to a question on cross-examination, that he did not remember telling Mr. Henry, the same year, that the wheat on his father's farm, on the lower land, was dry wheat. Mr. Henry was asked if this statement was made. The question was objected to, and the objection was sustained. I think this was error. The witness, Rogers, had testified to the use of water by his father on this 127 lower land during tlie year 1886. If be stated that the wheat raised that year was dry wheat (that is, raised without water), it contradicted the first statement, and tended to impeach him upon the question as to the use of water on that land at this time, and therefore the cause ought to be reversed. My learned associates differ with the writer upon this question, and hold that the testimony so offered was not of sufficient importance to justify a reversal of the case. I find no other error in the record. In accordance with the opinion of the majority of the court the order and decree of the trial court is affirmed, with costs. ZaNE, C. J., and AkdeesoN, J., concurred in affirming the judgment for the following reasons: (1) the error claimed as to admission of testimony on account of the court’s expression of opinion as to the value of the testimony, being made in a trial before the court without a jury, was not error; (2) the attempted contradiction of the witness Rogers was on a point that might be material, if it had been attempted to be shown that there was an abandonment of the appropriation originally made, which did not appear in the testimony but was repudiated by both appellants and respondents. Therefore as to whether or not during a particular year the plaintiff had used water on a particular piece of land, could have little if any materiality. It - was not even asked the witness, so far as the record shows, whether or not the wheat raised upon the particular land was dry wheat. And on the whole the matter was of such minor importance as not to require a reversal of the case.