Phillips v. Coburn , 28 Mont. 45 ( 1903 )

ME. CHIEF JUSTICE: BEANTLY,

after stating the case, delivered the opinion of the court.

1. Contention is made by counsel for appellants that the district court erred in excluding certain evidence tending to show that the defendants’ ditch and premises are upon- the Fort Belknap Indian reservation. This contention proceeds upon the theory that, if it were made to appear that defendants’ ditch and lands are within the limits of the reservation, this fact would necessitate a finding that defendants are not entitled to the use of any of the waters in controversy, because they could not lawfully occupy any portion of the reservation, or make an appropriation of waters thereon. • The record discloses that the evidence was offered by the plaintiffs, and admitted without objection. Presumably, it was considered by the court soi far as it was pertinent to any question involved in. the case. Counsel say, however, that the memorandum opinion of the court filed with the clerk and incorporated in the récord shows- that the court expressly excluded this evidence in making up the findings, and refer to the memorandum as the basis upon which to predicate this assignment of error. The opinion of the court has no place in the record, and cannot be looked to for any purpose. (Cornish et al. v. Floyd-Jones, 26 Mont. 153, 66 Pac. 838; Menard v. Mortana Central Ry. Co., 22 Mont. 340, 56 Pan. 592; Butte & Boston Mining Co. v. Societe Anonyme des Mines de Lexington, 23 Mont 177, 58 Pac. 111, 75 Am. St. Rep. 505.) It is, therefore, not apparent from the record, to which alone this court may look, that the plaintiffs were prejudiced by the trial court in refusing to give such weight to the evidence in question as it deserved: We do not wish, however, to be understood by anything here said as holding that the evidence was competent, and should have been considered. Under the stipulation above referred to, an inquiry into the title by which the defendants hold their lands wasi not pertinent to the case. Whether the right of defendants to the use of the water through a ditch which was taken out upon the reservation could thus be attacked in a collateral way, or whether this was a question exclusively between defendants and the federal government, we do not undertake to decide, because it is not properly before us.

2. It is argued that the court erred to the prejudice of the plaintiffs in admitting evidence of declarations by Marshall and Mercer, the predecessors of plaintiffs, in disparagement of their right to the use of any of the waters of Warm Springs creek under the appropriation alleged to have been made by them on July 8, 1889, and prior to their conveyance to> plaintiffs. The evidence tended to show that early in August, 1889, they had some conversation with certain of the witnesses who testified at the hearing, and at that time stated that they desired “to take up’’ a water right, and asked for information as to how they should proceed. The argument is that, inasmuch as the court found that their appropriation was made on October 1, 1889, their declarations made in August could not be regarded as in disparagement of their title, because they could not then have been in possession of the property about which they were speaking. There is no merit in this contention. The plaintiffs claimed through Marshall and Mercer under an alleged appropriation by them in July, and continuous possession and use by them until they conveyed to plaintiffs. They offered evidence tending to support this claim'. This being so> plaintiffs could not effectively resist the introduction of their declarations made subsequent to that date, which tended to show that their claim was unfounded. The evidence falls clearly within the rule declared by Section 3125 of the Code of Civil Procedure, and was admissible. Its admissibility and probative character was not affected by the finding of the court that the appropriation was in fact made at a later date than that claimed. Presumably, these very declarations in a measure influenced the court in finding as it did. According to the plaintiffs'’ contention, they should have been held admissible only after conclusive proof that the appropriation had been made by Mercer and Marshall .as alleged.

3. The point is made that the evidence is insufficient to support the findings. The specifications of particulars wherein the evidence is alleged to be insufficient da not meet the requirements of the statute (Section 1113, Code of Civil Procedure), but are subject to the same infirmity as those criticised in Cain v. Gold Mountain Mining Co., 27 Mont. 529, 71 Pac. 1004, and eases cited. We find, however, from such examination as we have been able to make of the evidence, unassisted by suitable specifications, that it is conflicting upon all the issues involved. We must, therefore, accept the judgment of the district court thereon as conclusive.

. The judgment and order are affirmed.