Brash v. White , 3 Ariz. 212 ( 1890 )

PER CURIAM.

This is an action by the. plaintiff against defendant for damages claimed to have been suffered by reason of the defendant cutting an irrigating ditch of plaintiff and diverting water therefrom, thereby injuring the crop of plaintiff. It is insisted by defendant (appellant), first, that there was no substantial damages proven on the trial below. The evidence does disclose the fact that the plaintiff on the trial below testified that White (defendant), without his (plaintiff’s) permission, puts dams in the ditch and diverted water from May 11th to June 1st nearly all the time, and that consequently, he lost nearly all his corn, and had a young crop of alfalfa injured; that he had from two hundred and fifty to three hundred acres in alfalfa; that he lost one hundred tons of alfalfa, worth ten dollars per ton in stack, the cost of putting in stack, two and one half dollars per ton; that he lost twenty thousand pounds of grain, and perhaps twenty-five dollars worth of trees.

Several witnesses testified that they saw the crop of plaintiff, and that it looked like it needed water. On the other hand, the defendant’s evidence was very strong that there was no substantial damage to plaintiff by reason of anything done by defendant. It may be said the evidence was not as certain in character or as clear in preponderance as to make the question free from difficulty. But the court below, with the witnesses before it, was in a better position to judge of the credibility of witnesses and the weight of the evidence than the appellate court, that had only the record statement of what the evidence was, without the advantage of observing the manner of the witnesses, etc. The conflicting testimony was weighed, considered, and determined by the trial court, and the rule in such cases is well settled that the appellate court will not disregard the conclusion reached by the trial court. The conflict in the evidence extended to the amount of damage suffered by the plaintiff, as well as the question of damage or no damage. Having examined the record sufficiently to see that there was a substantial conflict, we do not feel called upon to go over the same further than we have done.

It is further claimed by defendant that he was the lessee of water, and not of land and water. Upon this point, also, there was a conflict. It is still further claimed that defendant was tenant of plaintiff, and had a right to take water from his ditch as tenant for the year. Also that, if he was not tenant, he had a license from the plaintiff to do so. If we concede that he was tenant by the year or that he had a license from the plaintiff, his tenancy or his license, whichever it was, he terminated by his own act of “jumping” the land on which he was as tenant or by license. He cannot occupy the position of an adverse and hostile holding, and at the same time that of a tenant or licensee. The conclusions we have reached cover all the material points in the case.

While we have considered the merits of this case, there are objections to the transcript fatal to the appeal. The motion for a new trial was not saved by a bill of exceptions. Rev. Stats. 1887, par. 842.

Judgment below is affirmed.