Opinion
Carvilles&sCarville, Reno, Wm. J. Crowell, Tonopah, for appellant.
Gray s&sHorton, Ely, for respondent.
BADT, Chief Justice.
We heretofore dismissed the appeal from the order denying appellants' motion for a new trial, such appeal being ineffective for want of filing of an undertaking. Chance v. Arcularius, Nev., 227 P.2d 198. However, we denied respondent's motion to strike the transcript of the proceedings following the action of this court in Magee v. Whitacre,Sweet v. Sweet, 60 Nev. 202, 96 P.2d 201, 106 P.2d 751, in which it was said that respondents might present in their briefs on the merits reasons why this court could not consider the bill of exceptions on the appeal from the judgment. In refusing to strike the transcript however, we stated: 'With the dismissal of the appeal from the order denying new trial, we cannot say at this time just what use appellants will make of the two volumes comprising the bill of exceptions,' (Volume II being the transcript of proceedings). Thus we have before us in any event an appeal from the judgment alone in which we may consider such errors as appear from the judgment roll. Appellants contend however that inasmuch as the transcript of the proceedings has not been stricken the court may and should consider the same, not for the purpose of determining the sufficiency of the evidence to support the findings and judgment, but to determine whether there is any evidence in support thereof. In support of this contention appellants rely upon 49 Nev. 254, 243 P. 817, in which case appellant did not perfect her appeal from the order denying new trial and the appeal was only from the judgment. This court there said: 'We agree with counsel for respondent to this extent--that we cannot consider the sufficiency of the evidence, because the appeal is from the judgment, and not from the order overruling the defendant's motion for new trial. We are of opinion, however, that, upon exceptions to a judgment, and upon appeal therefrom, we can examine the evidence to determine the legal question whether there is any evidence to support the judgment.' No authority was cited in support of this statement and no reason given for announcing such rule of law. After making the statement, the court proceeded to a discussion of the pleadings and the questions of law involved and the conclusion reached, and then states: 'We have examined the evidence to determine whether there is any legal evidence to support the judgment, and, being of opinion that there is, the judgment is affirmed.'
Despite this rather summary recognition and disposition of the point and the lack of authority or reason for the stated rule, appellant insists that the rule was thereafter approved in Re Benson's Estate, 62 Nev. 376, 151 P.2d 762, 763. This court there said: 'It is stated in appellant's closing brief that on appeal from a judgment, even Sweet v. Sweet, The rule of the Sweet case was again advanced in Richards v. Steele, 60 Nev. 66, 99 P.2d 641, 643, 100 P.2d 72, and the court, on the appeal from the judgment alone, said, citing the Sweet case: * * * we can therefore examine the evidence to determine the legal question whether there was any evidence to support the judgment.' It recites the appellant's contention 'that there was no evidence' to justify the decision and 'a total failure of proof'. The court then discusses the pleadings and points to a single item of proof--a deposit of $2400 in postal savings account so as to place it in the infant's exclusive control as constituting some substantial evidence of a gift. On rehearing, 60 Nev. 72, 100 P.2d 72, 73, the court again refers to the Sweet case and says that the sole question before the court was 'whether there was any substantial showing to support the judgment'.
The Sweet case was again cited in Monitor Pipes&sSteel Co. v. Flanigan Warehouse Co., 63 Nev. 449, 172 P.2d 846, 847. No motion for a new trial had been made, but the parties stipulated to a bill of exceptions and record on appeal, including pleadings, evidence, a deposition, etc. Respondent moved to strike the same, but the court held that its contentions could be batter considered on the appeal on the merits. The court there referred to appellant's contentions as follows: 'Appellant does not question the well settled rule that when there has been no motion for a new trial, the supreme court will not inquire into the sufficiency of the evidence to support the trial court's findings. He expressly admits that he is in no position to question its sufficiency on this appeal. He does maintain, however, that on appeal from the judgment alone this court may examine the evidence to determine the legal question whether there is a total failure of proof to support the judgment. In support of this contention he cites [Sweet v. Sweet, Richards v. Steele and Benson's Estate].' There appears no word of approval of the rule itself.
In 1935, Stats.1935, Chap. 90, p. 195, the legislature passed a new act regulating new trials and appeals, and in 1937 again passed an entirely new act regulating such proceedings, repealing all acts in conflict but reenacting many of the sections of the 1935 act. Stats.1937, Chap. 32, p. 53.
In Neill v. Mikulich, 57 Nev. 307, 64 P.2d 612, 614, under an appeal from the judgment, it was insisted that the 1935 amendments permitted the court to consider the insufficiency of the evidence. The point was not narrowed to the question of total lack of evidence, but the holding of the court is nonetheless significant. The court held that the rule had not been changed by the 1935 statute and that the only way the court could consider the sufficiency of the evidence, rulings upon instructions etc., was 'for the aggrieved party to make his motion for a new trial and to appeal from an adverse ruling.' The significance of the case concerns its consideration by the court in Snyder v. Garrett, 61 Nev. 85, 115 P.2d 769, 771. This opinion involved the 1937 New Trials and Appeals Act, and the appellant, appealing from the judgment alone without moving for a new trial, insisted that the sufficiency of the evidence could be considered on such appeal under the provisions of the 1937 act. With Taber, J., dissenting, the court reviewed the new act, the old sections reenacted, the significance of the omission of other sections, quoted the foregoing language from Neill v. Mikulich, referred to the recognized practice before this court from earliest times and emphasized the reason for the rule, namely, The rule stated in Sweet v. Sweet that even in the absence of an appeal from an order denying new trial and even in the absence of a motion for new trial, the court may nevertheless consider the transcript to determine whether there is any evidence to support the findings, has not, so far as we have been able to discover, been approved by any other court having similar statutory provisions. We are not here concerned with that exception to the 'substantial evidence rule' which permits consideration, on appeal from an order denying new trial, of the assertion that there is no substantial conflict in the evidence upon any material point and that the decision is against such evidence upon such point, or where the decision is manifestly and palpably contrary to the evidence, Kitselman v. Rautzahn, Nev., 232 P.2d 1008, and cases therein cited, or the assignment that, upon all the evidence, it is clear that a wrong contention has been reached. Consolazio v. Summerfield, 54 Nev. 176, 10 P.2d 629.
We are satisfied that the rule in Sweet v. Sweet is not sound, that it is contrary to the recognized practice in this state since our earliest opinions, that it tends only further to confuse the situation where there is no appeal from an order denying a new trial, and that to all intents and purposes it nullifies the main rule that the sufficiency of the evidence cannot be considered on an appeal from the judgment alone. If, upon a simple assertion by the appellant that there is no evidence to support the findings, he is entitled to refer to the entire transcript of the evidence, the next step is to insist upon his right to show that there is no competent evidence to sustain the findings, or, though the evidence be concededly competent, that it was neither relevant nor material, that it was unworthy of belief, that its effect was destroyed by admissions made by witnesses on cross-examination, that it was entirely rebutted by other evidence. If these be the natural consequences of the rule in Sweet v. Sweet, and we think they are, then we have done away with the main rule to which the no evidence rule is something in the way of an exception. The reason for such main rule as quoted above applies a fortiori to a contention that there is no evidence to support the findings. If a trial court, to avoid the expense and annoyance of an appeal, must first be given an opportunity, by motion for new trial, to correct its error because of insufficiency of the evidence, there is all the more reason that it should be given such opportunity by reason of an entire lack of evidence. In the latter case it would seem that the error would be more readily found than in the former. The present appeal furnishes an excellent example of our conclusion.
Appellants brought their action in the district court to restrain respondent from interfering with their grazing rights and stock watering privileges upon the public domain in Ralston Valley, Nye County, Nevada, alleging their use of the range through themselves and their predecessors for over forty-five years. They claim that these rights were established under the 1925 stock watering law and under the 1931 grazing law. Respondent claimed the same range, or part thereof, under similar usage and custom through himself and his predecessors, and asserted in addition that by agreement between the predecessors of the respective parties there had been an agreed division of such range. The valley runs in a northerly and southerly direction from the Tonopah-Ely highway on the south to the town of Belmont on the north, and is divided by what is known as the Belmont or Ralston-Rye Patch Wash running northerly and southerly through the valley and into which drain the waters from higher forest lands on the east and west.
The usual plat was an exhibit in the case. It indicates this section of the public range as running approximately 35 miles north and south and 12 to 15 miles east and west. The index to the transcript shows that fifteen witnesses testified, and
Respondent's memorandum refers to the testimony of numerous witnesses asserted to establish the open, notorious, continuous, peaceable use of the range by respondent and his predecessors to such extent as amply to support the findings and judgment. Both parties discuss at length the ownership of the stock watering rights in the range area, and the nature of the use made thereof.
The foregoing picture, brief though it is, gives some idea to courts familiar with cases of this kind of the general nature and scope of the testimony adduced. Yet appellants, while recognizing the rule that we cannot pass on the sufficiency of the evidence, insist that a search of the entire record will reveal that there is no evidence to support the trial court's findings, and that for such purpose they may refer to, and the court may consider, the transcript of evidence. Appellants' assignments of error indicate how far the application of the Sweet rule would inevitably carry us. We cite only some examples of this.
The trial court found that in 1937 the predecessors of the parties has agreed upon a division of the use of the range. Appellants do not assert that there is no evidence of such agreement, but contend that it is not binding upon them because certain of their predecessors, users of parts of the range involved, were not parties to it. So we are necessarily led to a consideration of all the evidence establishing the range rights of the several predecessors of appellants to ascertain whether their being parties to the agreement was necessary to its effectiveness.
With reference to the agreement itself, the written opinion of the learned district judge says: 'The evidence shows that, from the time of the conversation referred to, the graziers of the valley, including the Trudgens, Marsh and the United Company and their successors, adapted their grazing use, respectively, in conformity with the understanding referred to, the sheep using the area to the west of the wash and the cattle to the east, allowing for cattle drift to the west.' Later, after describing in some detail the use of the range and water rights made by the parties and their predecessors, the learned judge continued: 'The use, as herein described, has been acquiesced in by all persons concerned from the beginning of the practice referred to in or about 1937 until the controversy involved in this suit.'
Appellants contend that failure of respondent's predecessors to contest the stock watering application of appellants and their predecessors in the years 1944 and 1946 for Trudgen Well, Blair Well and Chance Well established as a matter of law that respondent was precluded by the terms of the 1925 stock watering law from any grazing rights within a radius of three miles from any of these wells. But this involves a consideration of whether the evidence shows that appellants watered sufficient numbers of livestock at these watering places 'to utilize substantially all that portion of the public range readily available to livestock watering at that place', Stock Watering Act of 1925, § 2, § 7980, N.C.L.1929, and whether there might be any substantial interference with or impairment of existing rights. Id. Further necessary investigations of the evidence suggest themselves by the issue raised, but we shall not pursue them. Appellants contend that the trial court erred in refusing to recognize their grazing rights under the 1931 grazing law growing out of their 'Customary or established use'. But this entails a consideration of the evidence to determine whether appellants had 'become established' in such use 'by operation of law or under and in accordance with the customs of the graziers of the region involved', and whether such use was 'continuous, open, notorious, peaceable and public', and whether it continued 'seasonally for a period of five years' prior to March 30, 1931, Grazing Act of 1931, § 1, § 5581, N.C.L.1931-1941 Supp., and whether there were 'any valid rights or priorities' existing in others, which under the terms of the act could not be modified or compromised by its provisions. Id. § 7, § 5581.06, N.C.L.1931-1941 Supp. Again the contention suggests further necessary consideration of other evidence and again we refrain from further enlargement.
Error is asserted in the court's finding that respondent had established his ownership of the waters of 'Henry's Well.' But it is conceded that the well was dug by respondent's predecessor in 1933. Many factual considerations would determine the validity and extent of the stock watering rights resulting therefrom.
It is said too that the court erroneously gave effect to respondent's hauling of water in tank trucks from Henry's Well to various points on the range to water his sheep from tanks or troughs, thus greatly extending the range rights awarded respondent. If so, we do not find it reflected in the judgment or any of the findings, but again the contention indicates how far the rule in the Sweet case carries us in investigation of the question as to whether there is any evidence to sustain the findings. It is also asserted that a 'division of the * * * range' made by the trial court was declared to be beyond its power in Itcaina v. Marble, 56 Nev. 420, 55 P.2d 625, 626. We avoid a discussion of the three opinions in that case necessary to a full consideration of the point raised, and satisfy ourselves with the observation that the effect of the trial court's findings and judgment was simply to grant in part and to deny in part the injunction sought by appellants and respondent, respectively. If appellants insist that this was in effect a 'division of the * * * range,' then every decree in a proceeding of this nature would in a sense divide the range, unless all of the grazing and stock watering rights were found to be in one of the parties. It is in any event evident how far we should be led by the rule of the Sweet case upon this assignment of error.
All of the foregoing examples illustrate the lengths to which the natural and necessary implications of the rule in Sweet v. Sweet carry us. It would have been a simpler matter, and certainly less of a burden upon the court, to perpetuate the rule (adopted in a single sentence without citation of authority or reason), to thumb through the transcript, and fasten upon some bit of testimony of one of respondent's predecessors indicating such exclusive use of the range by cattle as to furnish some evidence supporting the findings. In this we should be following Benson's Estate and Richards v. Steele. We have not felt ourselves justified in pursuing such course.
It is said that if we do not examine the transcript to determine whether there is any evidence to sustain the findings, we are departing from our avowed purpose to determine cases upon the merits wherever possible. This situation, however, resulted from our being compelled to dismiss the appeal from the order denying a new trial for lack of statutory undertaking on such appeal. Nor do we feel that the rejection, at this stage of the proceedings, of the rule advanced in Sweet v. Sweet is one that works harshly or prejudicially upon the appellants. Our adherence in Jensen v. Reno Central Tradess&sLabor Council, Nev., 229 P.2d 908, to the rule of stare decisis was for the protection of rights that could and did accrue out of reliance on rules of law theretofore enunciated by this court. The reversing of a procedural rule, such as the one involved here, is attended by no such effect. The careful and painstaking review of the facts by the trial judge, as well as briefs and the oral arguments of counsel, leave us in no doubt but that a perpetuation in this case of 'no evidence' rule would simply leave us in the lap of the 'conflicting evidence' rule, under which the findings It is not contended that any error appears from the judgment roll in itself or as in any way modified or affected by anything appearing in the transcript of the proceedings.
The judgment is hereby affirmed with costs.
EATHER and MERRILL, JJ., concur.