Helena weekly herald. [volume] (Helena, Mont.) 1867-1900, 1873-03-06
No. IS

case, and the facts found by the Court, any
rights of the plaintiffs have been infringed
| so as to entitle them to the injunction pray
ed for in their complaint. The plaintiffs
aver in their complaint that, during the years
1906, 1856 and 1867, they appropriated all of
the waters of the Pr;ckly Pear creek for the
purpose of irrigation that all of the waters
of said creek are NJ 'sary to irrigate their
lands-which the aver they located
water; and that the said lands arc upon and
contiguous to the said creek; that all of
the waters of said creek are necessary to irri-
| gate their land, and was used by them for
that purpose, and without it they would be
unable to produce any crop; and aver that
| the defendants have diverted and used the
waters of said creek, appropriated by them,
and continue and threaten to continue to do
so. The defendants deny that the plaintiffs
appropriated all of the waters of Prickly
Pear creek; deny that all of the waters of
said creek are necessary to irrigate the land
of the plaintiffs; and deny that they have
diverted more than five hundred inches of
the water of said creek; and aver that their
appropriation of the same was prior to any
appropriation of the plaintiffs thereof.
There are other issues presented in the plead
ings. These are enough, however, for the
purpose of determining the points presented.
The Court refused to grant the Injunction
prayed for by plaintiffs, and gave the defend
ants Judgment for costs. The plaintiffs
moved for new trial, and as ground there
for assigned the following list of errors:
l. The Court erred in refusing to grant
plaintiffs the injunction prayed for in their
complaint. Il: ... ..r
2. The Court erred in ordering judgment
to be entered in favor of defendants and
against plaintiffs.
8. The Court erred in finding of facts.
T. The Court erred in conclusions of
law.
5. That the findings of both law and fact
are against the evidence.
There are no other specifications of error
in the record than the above. .,y F..
This assignment of errors is 50 general
that, as has been frequently held by this
Court, they cannot be considered This
Court in this particular has followed those
of California. (See Hutton VS.. Reed, % Cal.
483; Partridge VS.. San Francisco, 81 Cal.
415; Fitch vs. Bunch, 80 Cal. 2OS.) The as
signment of error should point out wherein
the error was committed. Upon which dis
tinct point our Practice Act provides:
"When the notice designates as the ground
upon which the motion will be made, the in
sufficiency Of the evidence Justify the verdict
or other decision, the statement shall specify
the particulars in which such evidence is al
legged to be insufficient. -
In this case there was no verdict The
cause being chancery one, and no findings
of fact by the court. When the court fails
to file any findings, the presumption OF law
is that the court found every material issue
in the case against the loosing party, and in
favor of the party that was successful. The
opiuion of the court cannot be treated as
fin Of fort ic w
plated by the statutes of this Territory as a
finding of facts Our statute upon this sub
ject is the same as that of California. The
courts of that State have held that it cannot
be treated as such. (See Hedden VS.. Jordon
% CAL, 3O5. McCary VS.. McClary 50 Cal.,
SIS. The statement does not specify the
particulars in which the evidence is INSULT
cient to support any of the findings of fact
which the law presulnes were found. Treat
ing the opinion of the District Court as a
finding of facts; and the statement does not
specify the particulars in which anything ex-
pressed therein which could be considered as
a finding of fact, is supported by the evi-
dence. Under our statute, then, the state
ment must be disregarded. Laws of 1867,
page 172, section 1875.
Although there may in fact have been
errors in the findings of facts which this
court will presume were found by the court
below, we have no means of reviewing them.
The material issues having been found against
the plaintiffs, and in favor of the defendants,
there certainly was no error in law for the
court to refuse to grant the injunction asked
for by the plaintiffs, unless the defendants in
their answer raised no material issue, which
it was necessary for the plaintiffs to establish
in order to entitle them to recover. No such
claim is made by the appellants. This court
will not reverse cause, because it holds that
the reasons a court may have given for his
decision were erroneous.
Judgment affirmed with costs.
HIRAM KNOWLES, Associate justice.
concur in the conclusion arrived at. that the judg-
ment below should be affirmed. t.|
D. S. WADE, Chief Justice.
Filed and entered January sth, 1873.
A true copy. Attest: j. r. ALDEN, Clerk.