Stockman v. Riverside Land & Irrigating Co.

Ross, J. Action to quiet title. It appears from the record that “by arrangement of both parties made in open court, six special issues were framed to he presented to a jury then and there impaneled to answer the same by their verdict as advisory to the court.55 Afterwards the jury returned answers to the issues. The cause was then proceeded with, and after being argued and submitted to the court for decision, the court made and filed findings of fact and conclusions of law; and it is insisted, on behalf of the appellants, that, as the findings of the court upon some of the material issues are contrary to the find[58]ings of the jury upon the same issues, this court should, notwithstanding a substantial conflict of evidence upon those issues, proceed to weigh the evidénce, and decide whether it preponderates in favor of the findings of the_ court or of the jury. To this we cannot assent. The findings of fact by the court are as conclusive here as they would be if no jury had been impaneled in the case. The question for us is, whether there is sufficient evidence to sustain the findings of the court upon the material issues; and a substantial conflict in the evidence upon such issues is sufficient to sustain a finding either way upon them. It has often been held here that the verdict of. a jury in an equity case is but advisory to the court, and in this case it appears to have been the understanding between the parties that it was to be regarded in that light only.

The findings of the court below upon the issues are, with one exception next to be noticed, full, and, in our opinion, sustained by the evidence. We would, therefore, affirm the judgment and order, but for the fact that the defendant in its answer set up ownership in itself of a certain water ditch, referred to in the record as the “upper ditch or canal,” together with the right of way therefor through that portion of the land described in the complaint, which is found and adjudged to be the property of the plaintiffs. On the issue made as to this question, the court below found that the ditch in question was completed in 1871 (more than five years before the commencement of this action), at heavy cost, and that it “was constructed, maintained, and used, including a strip fifteen feet wide on each side of the center line thereof .... for the purposes of irrigation .... with the knowledge of the plaintiffs and their grantors, and without any objection or opposition thereto on their part, and with the active assistance of divers of said plaintiffs.” With this finding as its basis, the court below adjudged “that the defendants arc the owners of and entitled to the possession of and the right to maintain the upper canal of the Riverside Land and Irrigation Company, and to use a strip of land fifteen feet wide on each side of the center of said canal therefor.”