(Download) "Wills v. Morris Et Al." by Supreme Court of Montana # Book PDF Kindle ePub Free
eBook details
- Title: Wills v. Morris Et Al.
- Author : Supreme Court of Montana
- Release Date : January 17, 1935
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 59 KB
Description
Waters and Water Rights ? Appeal and Error ? Record on Appeal ? Appeal Lies from Part of Judgment ? When Appellant not Required to Incorporate in Record All of Evidence. Appeal and Error ? Appeal Lies from Part of Judgment. 1. Under the provision of section 9733, Revised Codes 1921, declaring that an appeal is taken by filing a notice "stating the appeal" from the judgment "or some specific part thereof," held that where the judgment is divisible, an appeal may be taken from a part thereof. (Overruling Lohman v. Poor, 68 Mont. 579, holding otherwise.) Water Rights ? Judgment Involving Numerous Parties ? Judgment Divisible into Parts ? Appeal Lies from Part of Judgment. 2. In a water right suit involving numerous parties every party is an antagonist of every other party diverting water from the stream in controversy; hence where two or more parties are awarded a water right under the terms of the decree, each of them recovers a judgment against the other or others; such a judgment is divisible into parts and therefore an appeal lies from a part thereof. Same ? When Motion to Dismiss Appeal Because All Evidence not Brough Up Does not Lie. 3. Where appellants (three of numerous defendants) in a water right suit in their record on appeal from those parts of the judgment affecting - Page 505 their rights with relation to the right awarded to plaintiff, presented only the evidence pertinent to the rights questioned on the appeal, motion to dismiss the appeal on the ground that all the evidence heard in the case was not before the court will be denied; if respondent on settlement of the bill of exceptions deemed omitted evidence essential to a proper review, it was his privilege to propose appropriate amendments to the bill. Same ? Erroneous Finding as to Waters of Alleged Tributary Flowing into Stream Where Tributary Dry Course Part of Year. 4. Evidence in a water right suit held not to warrant a finding that an alleged tributary naturally flows into a certain creek, and that the finding should have been that the tributary is a dry course except in springtime, the waters of which then flow into the main creek. Same ? Showing Insufficient to Warrant Granting of Water Right. 5. Where the evidence relating to a claimed water right is meager and uncertain as to the existence of a plow furrow through which water was said to have been running fifty years ago, and silent as to who constructed it and what use was made of the water, and from the record it is not clear under what appropriation claimant was using the water, the trial court may not be found to have been in error in declining to award him a right.