Sharp v. Gianulakis

GIDEON, J.

It is alleged in the complaint that the respondent, plaintiff below, owned certain property described located in Carbon county, Utah; that the respondent and his predecessors in interest, for more than 30 years preceding the date of the filing of the complaint, had taken from a mountain stream known as Grassy Trail creek water and had diverted the same by means of headgates and ditches upon said real estate and applied it to a beneficial use in the irrigation of crops growing on the land; that on or about June 1, 1920, and at diverse subsequent times and prior thereto, the defendant wrongfully and unlawfully cut the headgates and destroyed the banks of the ditches through which the water was flowing and deprived the plaintiff of the use and benefit of said water for irrigation and other purposes. Damages to respondent’s crops by reason of appellants interference with his right to the use of the water were also alleged. The prayer of the complaint is for damages, for a decree quieting respondent’s title and right to the use of the water, and for a permanent injunction restraining appellant from in any way interfering with the use of the water or any part thereof by respondent. The appellant denied respondent’s right to the use of the water, and in an affirmative defense claimed ownership and right to use the water upon lands owned by him. The court entered judgment for $150 damages in favor of respondent and a perpetual injunction restraining appellant from interfering with respondent’s use of or right to use the water in controversy. From that judgment this appeal is taken.

Four errors are assigned. The first two relate to the ruling oí the court in permitting the respondent to file a reply to the affirmative matter of the answer during the progress of the trial and also to the ruling of the court in refusing to grant appellant’s motion for a continuance to permit the appellant to secure witnesses to meet the issues raised by the reply.

The order granting permission to file a reply is clearly within the discretion of the trial court, as also is the motion for a continuance. In the absence of any showing that the court abused its discretion, this court is not authorized to disturb those orders or to reverse the judgment by reason of the same. The affirmative matter denied by the reply in no way related to the claim or right of the respondent to the use of the water. It was an affirmative allegation alleging ownership and right to the use of the water in appellant. No showing was made to the court as to what witnesses were required to meet the issue raised by the reply; nor was anything stated as to what such witnesses would testify if present. There is nothing to show that the court abused its discretion either in permitting the reply to be filed or in denying the motion for continuance.

By the third assigned error it is claimed that the trial court erred in permitting the introduction in evidence of a certain decree, in the case of J. R. Sharp v. George C. Whitmore and Others, for the reason that the decree has no relation to and is in no way connected with the issues of the present 'action. That decree is not found in the record. Whether it was considered by the court in arriving at its judgment does not appear. There is ample evidence in the record to support the court’s findings and decree independent of and regardless of the decree in the Whitmore Case. If that decree was not admissible as evidence in this case, in the absence of a contrary showing it must be presumed by this court that the trial court did not consider that decree in arriving at its judgment.

Under the fourth assigned error it is strenuously insisted that the court erred in entering judgment for damages against tbe defendant for tbe reason that there is no sufficient evidence on wbicb to base sucb a judgment, and that tbe finding has no support in tbe evidence. There is testimony in tbe record given by tbe respondent that in tbe year 1920 be bad a growing crop of oats on 15 acres of land; that sucb crop was a healthy and normal one in June of that year; and that by tbe interference with tbe use of bis water by tbe appellant tbe crop was an entire failure, and respondent was not able to harvest it except as it could be used for chicken feed. Respondent also gave testimony as to tbe cost of maturing a crop, harvesting it and having it threshed, and as to tbe number of bushels that ordinarily can be realized per acre from a usual or normal crop. Respondent likewise gave testimony as to tbe cost of oats at tbe nearest market point. It has been established by two former opinions of this court that tbe measure of damages for tbe destruction of a growing crop is tbe difference between tbe market value of tbe crop before and after tbe alleged damage; that in attempting to arrive at that damage it is proper to take into consideration tbe market value of tbe crop at maturity and deduct its entire market value at maturity in its injured state from tbe market value if it bad been permitted to mature in tbe ordinary way, and deduct from that amount tbe cost of harvesting tbe same and bringing tbe crop to maturity. Cleary v. Shand, 48 Utah, 640, 161 Pac. 453; Naylor v. Floor, 51 Utah, 382, 170 Pac. 971. In tbe absence of any showing to tbe contrary, this court will presume that the trial court in tbe determination of damages, if any sustained by respondent, caused by tbe acts of appellant, applied tbe proper measure of damages as announced by this court. Tbe court allowed $150 damages, and tbe testimony measured by tbe standard announced in tbe cases cited is amply sufficient to support tbe court’s finding in that regard.

We find no reversible error in tbe record.

Tbe judgment of tbe district court is therefore affirmed, with costs.

THURMAN, FRICK, and CHERRY, JJ., and HANSEN, District Judge, concur. WEBER, C. J., did not participate herein.