Grant v. McPherson

Garoutte, J. This is an action brought to determine that plaintiffs are entitled to have one hundred inches of water flow to the head of their ditch in Sandy gulch, and to have it determined that they are entitled to divert that quantity of water for the purposes stated in the complaint. Defendants deny that plaintiffs are entitled to the relief sought, and base their denial upon the ground that defendants are the owners of the first right to the waters of Sandy gulch, and this because their grantors first appropriated the waters, and secondly, that, assuming plaintiffs to have acquired the first right by prior appropriation, still they have lost that right, and the defendants have secured the same by adverse user.

A jury was impaneled to advise the court as to the facts, and one hundred and thirty-three special issues were submitted to them for their consideration. The [166]court adopted the findings of the jury upon these special issues as its findings of fact, and rendered judgment thereon. Appellants made a motion for a new trial, which was denied, and thereupon took the present appeal to this court from the order denying such motion. It is not insisted by appellants that the judgment is not in line with the findings of fact, but it is insisted that the findings have not sufficient support in the evidence, and the important matters raised by this appeal are exclusively questions of fact.

The principal question disclosed by the record is, Did plaintiffs or defendants obtain title to the waters of Sandy gulch by actual appropriation? And the determination of that question rests upon the parol evidence of a great number of witnesses as to the acts of the grantors of these respective parties as least forty years ago, and the conditions surrounding this waterway at that time. The parties to this litigation not only rely upon acts of appropriation for their respective titles occurring so many years in the past, but the inception of these titles is laid at about the same time. Under such circumstances most naturally a conflict of testimony arose as to the fact of the first appropriation. A mass of evidence was placed before the court and jury upon this question, and upon such evidence the court and the jury found in favor of plaintiffs; and, upon a careful reading of the record, we cannot say that there is no substantial positive conflict upon this disputed question of fact.

It would serve no good purpose to take up the testimony of the various witnesses and analyze it in detail, with the object of indicating specifically this conflict. Appellants base their rights upon actual appropriations made by several different parties, but rely principally upon appropriation by the Bacons. The respondents rest upon an appropriation made by one Morehouse, and even conceding that the testimony preponderates in favor of appellants’ claims, still a first appropriation is shown to have been made by More-