Pereira v. Smith

Foote, C. The plaintiff brought this action to enjoin the defendant from interfering with the former’s use of certain natural waters of a stream claimed by the plaintiff as a prior appropriator, and for damages for injury already done in obstructing the flow of that water.

The plaintiff obtained a judgment as prayed for. From that, and an order denying a new trial, the defendant has appealed.

The main contention of the appellant appears to be that the court erred in making its fourth, seventh, eighth, ninth, tenth, eleventh, and twelfth findings of fact, and a long and vigorous argument, of many pages in extent, is devoted to the discussion of the evidence, or at least parts of it, as going to show that there was no evidence to support these findings.

[233]A painstaking examination of all the evidence in the record has satisfied us that the findings are supported by it.

All the evidence as to damages suffered by the plaintiff was given by witnesses brought forward by him, the defendant making no effort to controvert it. The plaintiff, after giving an estimate of particular items of damage, states that he suffered twice as much damage as he claimed in his complaint, and it is not denied by anything brought forward in the evidence by the defendant that such is not the fact. The complaint claims $500 to be the damage suffered, and 'the judgment is for $325. We perceive no reason, therefore, for saying that the amount of damages found is excessive, or not in accordance with the evidence.

It is further maintained by the defendant that the court refused to make certain findings upon points requested on his part. It appears that the findings asked for were written out, and the court was asked to adopt them as its own. This species of dictation as to findings is not allowable. Under the present system of findings, requests for findings are unnecessary. The court is bound to find on all the issues without any request to do so. If it does so find, whatever requests may be made may be disregarded. The question in all such cases must be whether the findings are sufficient, and the presence or absence of a request is utterly immaterial. In this case the findings are sufficient. The refusal, therefore, of the court to make the findings as presented to it as facts in the case is not erroneous.

Upon the whole record, perceiving no prejudicial error, we advise that the judgment and order be affirmed.