Opinion
No. 5207.
April 26, 1930.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O.R. Baum, Judge.
Action to determine amount of water right. Judgment for defendants. Reversed and new trial granted on limited issues.
D.W. Standrod, for Appellant.
The supreme court having remanded the case with specific instructions, the trial court had no authority to allow the defendants to file amended answers and cross-complaints raising new issues and incurring heavy expense. ( Jorgensen v. Bigelow, 37 Idaho 541, 217 P. 265; American Hydraulic Placer Co. v. Rich, 8 Idaho 570, 69 P. 280; Basinger v. Taylor, 36 Idaho 591, 211 P. 1085; Kerns v. Morgan, 11 Idaho 572, 83 P. 954; Mt. Home Lbr. Co. v. Swartwout, 33 Idaho 737, 197 P. 1027.)
Isaac E. McDougall, Merrill Merrill, L.E. Glennon, Peterson, Baum Clark, H.B. Thompson and T.D. Jones, for Respondents.
"After reversal and remand for a new trial, the parties in the court below have the same rights which they originally had." (2 Cal. Jur., Appeal and Error, 590; Cowdery v. London S. F. Bank, 139 Cal. 298, 96 Am. St. 115, 73 Pac. 196; Richards v. Bradley, 129 Cal. 670, 62 P. 316; Heidt v. Minor, 113 Cal. 385, 45 P. 700; Argenti v. San Francisco, 30 Cal. 458; Phelan v. San Francisco County, 9 Cal. 15.)
"The trial court has full power to allow amendments to the pleadings, independent of any direction of the appellate court." ( Ellis v. Witmer, 148 Cal. 528, 83 P. 800; Pierce v. Jackson, 21 Cal. 636.)
"It would require at least an expressed decision by the appellate court to the effect that an amendment otherwise proper should not be made in a court below, to take from it its ordinary powers to allow such amendments as appear to be in furtherance of justice and necessary or proper to enable the parties to present their whole case on the merits." ( Ellis v. Witmer, supra; Dubois v. Bowles, 55 Colo. 312, 134 Pac. 112.)
The former decision in this case ( Union Grain Elevator Company v. McCammon Ditch Co., 41. Ida. 216, 240 P. 443) settled and determined the following controverted issues: that appellant was entitled to a full and continuous water right throughout the year and that appellant had not abandoned the same, but that the evidence did not show said water right to be 97.55 second-feet.
By the former decree the cause was remanded for the purpose of having determined the exact amount of water to which appellant was entitled, that is, what appropriation appellant had, the same being continuous for the year.
Upon the second trial, evidence was given by appellant as to the size of the mill when first installed, and the effect of the changes made during subsequent years upon the power required for its operation. Respondent introduced evidence on the same issues with certain specific figures based on a text on Practical Milling by B.W. Dedrick, and on abandonment and estoppel.
The last points were finally determined adversely to the respondent by the former decision and should not have been, and need not be further, considered.
From a consideration of all the evidence, we do not believe the findings, fixing appellant's water right, made by the trial court on the second hearing, are justified.
By reason of the expense already incurred and which would be involved in a new or further trial, the time already consumed in this litigation and the necessity of a new judge hearing the case, since the judge who heard the testimony is no longer on the bench and one of the judges now on the bench in the district where the action arose was formerly of counsel, we are loath to again reverse the case. ( Basinger v. Taylor, 36 Idaho 591, 211 P. 1085.)
But we do not feel that the present state of the record is such as to justify us in making findings or rendering a final decision here as in Vinyard v. North Side Canal Co., 47 Idaho 272, 274 P. 1069.
The judgment is therefore reversed and the cause remanded for a new trial upon the limited issues of the appropriation, to which appellant is entitled and the capacities of the mill.
Respondent's petition for rehearing on the per curiam memorandum opinion heretofore filed denied. Costs awarded to appellant.