Robertson v. Finkler

CHIPMAN, P. J.

Plaintiff seeks the judgment of the court that he is the owner of one-sixth of the waters of a certain spring, known as Rock Spring, and restraining defendants from diverting more than two-thirds of the waters of said spring; also directing defendants to remove any obstruction maintained by them which prevents plaintiff from obtaining the use of said one-sixth of said waters; also for

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damages in the sum of two thousand five hundred dollars. The findings of fact and conclusions of law were that plaintiff is the owner of an undivided one-sixth interest in said spring and the waters thereof and that defendants are the owners of four-sixths, the remaining one-sixth belonging to O. F. Westphal; that defendants have not nor has either of them diverted any part of the waters of said Rock Spring to which plaintiff is entitled, nor have defendants or either of them interfered in any way with plaintiff’s free and unobstructed use of said waters to which plaintiff is entitled nor threatened so to do; that plaintiff has not been damaged “in any way or manner whatsoever by reason of any alleged diversion or obstruction of the said Rock Spring by said defendants, or either of them, or by any act or acts of defendants or either of them, whatsoever.” Judgment passed for defendants from which plaintiff appeals under the alternative method.

As respects the question of alleged damages there was no evidence supporting plaintiff’s averments and plaintiff makes no claim for damages in his brief. That feature of the case may therefore be dismissed from consideration.

Plaintiff states in his brief: “This matter is one of fact rather than one of law. ... I do not believe that there is any law entangled in this case. From the testimony and under the admission of the pleadings we are absolutely entitled to one-sixth of ‘Rock Spring’ wherever that may be, and to one-sixth of the waters flowing therefrom, and whether or not Dr. Taylor or Mr. Finkler made any developments of ‘Rock Spring, ’ we nevertheless would be entitled to our one-sixth of all the waters flowing therefrom. ’ ’

No question arises as to plaintiff’s right to “one-sixth of Rock Spring wherever that may be, and to one-sixth of the waters flowing therefrom, ’ ’ for the evidence so showed and the court so found. The only question in dispute is whether certain water developed by defendants and their predecessors in estate is part of or should have been found by the court to be part of the Rock Spring water.