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borers from requiring of them an unreason- together, which must be done in order to arable number of hours of work in a calendar rive at a correct construction of the penal day, and to fix the number of hours that section, we are of the opinion that the words should constitute a day's work for such "employés or servants," as therein used, were miner or laborer and entitle him to a day's not intended to and do not include the miners wages, and not to punish the miner or labor- and laborers employed in the mine and mener who, as in this case, should voluntarily tioned in the first two sections of the act; perform more than eight hours labor in the and for that reason the facts stated in the mine in a calendar day. In a case arising information in this case do not constitute a under the statutes of Utah, which are some- violation of the act in question and that the what similar to ours, in which case an em- district court did not err in sustaining the ployer was prosecuted for unlawfully em- demurrer. The Attorney General has very ploying one to work in a mine for the period frankly stated in his brief that, after a careof 10 hours each day, the Supreme Court of ful examination of the question, he has arthe United States quotes and expressly con- rived at the same conclusion. curs in the language used by the Supreme Counsel have discussed in their briefs the Court of Utah, as follows: “The Legisla- constitutionality of the statute, but as we ture has also recognized the fact, which the hold that the information charges no offense experience of legislators in many states has under the statute that question is not propcorroborated, that the proprietors of these erly before us for consideration. establishments and their operatives do not The judgment of the district court is afstand upon an equality, and that their in- firmed. terests are, to a certain extent, conflicting. The former naturally desire to obtain as POTTER, C. J., and SCOTT, J., concur. much labor as possible from their employés, while the latter are often induced by the fear of discharge to conform to regulations which

(15 Wyo. 109) their judgment, fairly exercised, would pro

MAU V. STONER et al. nounce to be detrimental to their health or (Supreme Court of Wyoming. Nov. 17, 1906.) strength. In other words, the proprietors 1. WATERS AND WATER COURSES-IRRIGATION lay down the rules and the laborers are prac

DITCHES-CONTRACTS-EVIDENCE. tically constrained to obey them.” Holden

In an action for trespass on plaintiff's ir

rigation ditch, a contract between plaintiff and V. IIardy, 169 U. S. 366, 397, 18 Sup. Ct. 383,

defendants, by which one of the defendants :390, 42 L. Ed. 780. The penalty imposed by was given permission to extend and enlarge the the statute is to be inflicted upon "any own

ditch so that the others might use the same,

reserving to plaintiff the right to the use of the er, lessee or operator, his or its agent, em

first five cubic feet of water per second which jloyés or servants, violating any of the pro- flowed in the ditch, was admissible to show visions of this act." We think the persons

plaintiff's title and the extent thereof. (lesignated by the words "employés or serv- 2. SAME-WATER DISTRIBUTER--APPOINTMENT.

The distributer of water in an irrigation :ints," as used in this section, must be con

ditch, appointed as provided by Rev. St. 1899), strued as belonging to the same class of per- $$ 908, 916, as amended by Laws 1903, p. 122, sons as those designated by the word "agent," c. 93, acts officially by virtue of his appointused in the same connection; that is, that

ment, and has exclusive control of the ditch

for the purpose of dividing and distributing the class of employés or servants who stand in

water received into the same until he is removed the place of the owner, lessee, or operator from office. of the mine, and who have something to do 3. SAME-JURISDICTION. with employing, superintending, or directing

The jurisdiction of the district court to apthe miners and laborers in the performance

point a distributer of water flowing in a part

nership irrigation ditch, authorized by Rev. St. of their labors.

labors. The Legislature having 1899, SS 908, 916, as amended by Laws 1903, twice, in the preceding sections of the act,

p. 122, c. 93, does not depend on the consent used the terms “miners and laborers" as a

of the parties, but on the filing of a verified

petition alleging joint ownership of the ditch, class distinct and separate from other em- that the parties cannot agree on a distribution ployés and servants, it is reasonable to of the water, and praying for the appointment

of a distributer. suppose that, if it was the intention to in

4. SAME-JOINT OWNERSHIP-DENIAL: clude them in the penal provision, they would

In a proceeding for the appointment of a have been designated by the same terms or distributer of water in a partnership irrigaat least by terms equally unequivocal. It

tion ditch, as authorized by Rev. St. 1899, 88 is a rule of construction that a penal stat

908, 916, as amended by Laws 1903, p. 122, c.

93, a denial of joint ownership would not, of ute cannot be extended by implication or itself, oust the court of jurisdiction, nor will construction to persons or things not express- its determination adjudicate the titles and inly brought within its terms, nor to cases

terests of the parties in and to the ditch. not within the letter of the statute; and also


WATER-CONSPIRACY-BURDEN OF PROOF. that "all doubts as to the construction are Where, in trespass to recover for alleged resolved in favor of the defendant." Lewis'


unlawful interference with plaintiff's irrigation Sutherland, Stat. Con. (2d Ed.) 8 521, and

ditch, plaintiff alleged that a duly appointed

water distributer, by collusion with defendants, cases cited in notes.

had diverted the whole of plaintiff's water from Construing the several sections of this act the ditch, and had permitted defendants to appropriate the same to their own use, the burden any should be shown by the evidence. When was on plaintiff to establish that the water dis- the plaintiff rested his case, the defendants tributer and defendants acted jointly, in order to sustain such allegation.

moved the court for permission to amend 6. SAME -- IRRIGATION DITCHES - APPORTION- their answer, and, having obtained such per

MENT OF WATER - ACTS OF DISTRIBUTER -- mission, filed their amendment, and their NOTICE.

moved the court to instruct the jury to reThe fact that defendants were receiving turn a verdict in their favor, which motion water under a claim of right from a partnership ditch in which they claimed an interest

was granted. Judgment was rendered for pursuant to the direction of a regularly appoint- the defendants upon the issue as to trespass ed water distributer, who had exclusive con

and for costs, and also decreeing and granttrol of the ditch for the purpose of dividing ing the plaintiff injunctive relief as prayed. and distributing the water, did not impart knowledge to them that the water distributer The petition contains the following, among was acting unfairly to others who were also en- other allegations, viz.: "Plaintiff alleges that titled to water from the same ditch.

he is the sole and exclusive owner of said 7. PLEADING – MISJOINDER OF CAL'SES WAIVER.

canal and all the water running therein, and Where misjoinder of causes of action un

that neither of defendants, nor anyone der an alleged claim of joint liability was not else, has any interest whatsoever in said apparent on the face of the petition, it would

ditch, or any of the water running therein; be waived if not taken advantage of by answer, as provided by Rev. St. 1899, $ 3537.

that said water was appropriated by the [Ed. Notė. -For cases in point, see vol. 39, plaintiff and conducted through said ditch, Cent. Dig. Pleading, $$ 1355, 1370.]

and was also used by the plaintiff for domes8. WATERS AND WATER COURSES-IRRIGATION

tic, stock, and other beneficial purposes, and DITCHIES-JOINT USE-CONTRACT-REPAIR. has ever since been, and now is, the scle

"here a contract between plaintiff and S. water supply of plaintiff for all the purposes authorized the latter to use plaintiff's irrigation ditch on condition that he enlarge the ditch,

aforesaid; that between the 1st day of May, and also conferred on him in that event the 1902, and the 12th day of July, 1902, the right to clean out and repair the ditch when

said defendants, without any rights whatever it became necessary, plaintiff having failed

ever, and without plaintiff's consent, willto prove that S. did not enlarge the ditch as agreerl, it would be presumed that his act in

fully, wantonly, and maliciously diverted all shutting off the water in order to clean out the of plaintiff's water from the said canal, and ditch was necessary and reasonable and not appropriated it to their own use, and deprivtortious.

ed plaintiff of the use thereof, to his damage, 9. PLEADING -- JOINT ANSWER — JOINT AND SEVERAL LIABILITY.

etc.” Then follows an allegation of ownerIn trespass for interference with plain- ship of a tract of land lying under and irri.. tiff's irrigation ditch, defendants answered, gated by and from said canal, and damage jointly admitting plaintiff's prior right to the first five cubic feet of water running in the

to crops growing thereon by reason of said ditch per second, and claiming that their acts

alleged wrongful acts. The petition further complained of were done pursuant to a con- says: "That the defendants threaten to contract between plaintiff and s. The contract | tinue to divert and appropriate to their own created a several, and not a joint, 'ibility, and the evidence showed that defendants acted sep

use all the plaintiff's water, as aforesaid. arately at different times and places, and not

which threat, if carried out, will render the pursuant to any design or purpose by all of plaintiff's said tract wholly unfit for tillage them to deprive plaintiff of his rights. Held,

or cultivation, and will destroy the entire that the fact that defendants filed a joint answer did not preclude them from taking ad

value of said land, and produce great and vantage of the fact that the proof did not es- irreparable injury to the plaintiff.” The detablish the joint liability charged in the com- fendants joined in their answer, and claim plaint.

several ownership to distinct and separate [Ed. Note.For cases in point, see vol. 39, Cent. Dig. Pleading, $ 168.]

parcels of land lying along and under said

ditch and above plaintiff's land, and also Error to District Court, Uinta County; deny that the plaintiff was entitled to the Charles E. Carpenter, Judge.

excess over and above five cubic feet of waAction by Frank A. Mau against John W.

ter per second of time; allege that they were, Stoner and others. From a judgment for

pursuant to the provisions of a certain conplaintiff for less than the relief demanded, tract hereinafter referred to, the owners of he brings error. Affirmed.

such excess, and that they were, as they had See 83 Pac. 218.

a lawful right to do, applying such excess, J. H. Ryckman and S. T. Corn, for plain- and no more, to the irrigation of the crops tiff in error. J. W. Lacey, for defendants upon their several parcels of land; that the in error.

distribution of the water flowing in the

canal was according to the rights of the reSCOTT, J.

, Plaintiff in error brought this spective parties and by one Somsen, who had action in the district court of Uinta county theretofore been regularly and in pursuance against the defendants in error for the of law appointed water distributer, to divide double purpose of recovering damages for an and apportion the water of the ditch accordalleged trespass and for injunctive relief. A ing to the respective rights of all parties jury was impaneled and sworn in the case interested therein. All other matters alleged for the pur ose of passing on the question or in the petition are put in issue. The reply trespass and assessing damages therefor, if l' alleges that the order appointing said Somsen was wholly void and without authority of the consent of the parties, and this is true law, and that it was obtained at the instance whether heard by the court, commissioner, of the defendants, and that Somsen, pretend- or by the judge in chambers. Mau v. Stoner ing to act under the void order, but in fact et al., 12 Wyo. 478, 76 Pac. 584. The subat the instance and instigation of the defend-ject-matter was within the jurisdiction of the ants, diverted tue whole of plaintiff's water court upon the filing of a verified petition from the ditch, and further, that, prior to setting forth the fact of joint ownership in obtaining such alleged void order of appoint- the ditch, and that the owners could not ent, the defendants, between May 1, 1902, agree relative to the distribution of the waand May 21, 1902, took and diverted plain- ters received into the same, and praying the tiff's water to their own use to his damage. appointment of a water distributer, as pro

1. The court, over the objection of the vided in the statute, to take charge of the plaintiff, struck out all evidence of alleged ditch, and distribute the waters thereof to wrongful acts of the water commissioner, the parties entitled to it. If in such proceedand which were alleged to have been insti- ings the joint ownership was denied, that was gated by the defendants. The ruling of the a question to be determined the same as any court in so doing is assigned as error. The other, and such denial would not, of itself, record fails to present any evidence showing oust the court of jurisdiction. Such a quesor tending to show that the appointment of tion goes only to the jurisdiction, and its de Somsen as water distributer was illegal and termination would not adjudicate the titles void, or that he was, in dividing and appor- and interests of the parties in and to the tioning the water of the ditch, acting other ditch. State ex rel. Mau v. Ausherman et than in his official capacity. His appoint- al., 11 Wyo. 410, 72 Pac. 200, 73 Pac. 548. ment, if void, must be predicated on the al- These statutes, so construed, make it clear legation, if it be true, that the defendants that for the purpose of appointing Somsen who applied for his appointment had no in- as water distributer the ditch must have terest in the ditch or the waters flowing been found and determined to be a partnertherein. The plaintiff introduced in evidence ship ditch. Although Somsen was appointed a written agreement made by and between by the district court commissioner, it does him and John W. Stoner on May 20, 1897, not appear that any appeal has been taken wherein it is recited that the defendants from the action of the commissioner in so John W. Stoner, Aaron Stoner, Victor For- | appointing him, though such appeal is algeon, and others, who are not made parties lowed by section 910, Rev. St. 1899, as to this suit, were each the separate owners amended by chapter 93, p. 122, Laws 1903, of distinct tracts of land lying under a pro- and the order might have been suspended posed extension and enlargement of the during the pendency of such appeal by give ditch in controversy; that, for a considera- ing an undertaking in an amount fixed by tion, John W. Stoner was given permission the cominiissioner. Mau V. Stoner et al. to extend and enlarge said ditch, and when (Wyo.) 83 Pac. 218. Nor does it appear that so extended and enlarged to use the same any application for Somsen's removal bas and take water therefrom to irrigate his ever been made. He may, for all that the land, and also that the others named might record shows, still be in exclusive control of use said ditch and take water therefrom to the ditch, and the remedy here sought would irrigate their respective tracts of land, re- not disturb him in his authority over it. serving to Mau the right to the use of the Nor does the evidence show or tend to show, first five cubic feet of water per second of as alleged by the plaintiff, that the defendtime which should flow in the ditch. This ants instigated or procured him to commit contract was competent evidence to show any of the acts complained of. The burden Mau's title and the extent thereof. The was upon the plaintiff to prove this allega. question as to the amount of such excess, if tion, and the only evidence relied upon to any, to which each defendant is entitled is sustain it is that he was appointed pursuant not here involved. Sections 908–916, Rev. to the joint application of the defendants, St. 1899, as amended by chapter 93, p. 122, and that plaintiff was not receiving as much Laws 1903, provides the method of proce- water as he was entitled to, and that the dure to bave a distributer appointed to ap- defendants were at the same time receiving portion and divide the water of a partner- more than they, or either of them, was enship ditch in case of disagreement between titled to. As already stated, for the purthe partners, and also defines the duties of poses of appointing a water commissioner, such water distributer when so appointed. the partnership character of the ditch was He acts officially and solely by virtue of his determined in the proceeding leading up to appointment, and has exclusive control of his appointment. The defendants were then such ditch for the purposes of dividing and acting clearly within their rights under the distributing the water received into the same law. It is not pointed out nor has our atuntil such time as he may be removed by tention been called to a single authority or order of the court, judge, or commissioner. rule of law that imparts a wrong motive to The proceeding for his appointment was a the exercise of a statutory right, or gives a proceeding in the district court, and the cause of action therefor. The water discourt's jurisdiction did not depend upon tributer may have acted wrongfully, and the plaintiff may have been damaged thereby, the question by demurrer for misjoinder of but the gravamen of the charge is that such separate causes of action, and also misjoinwrongful act was at the instigation of the der of parties defendant; but, as these defects defendants. Knowledge of such wrongful were not apparent upon the face of the acts is imputed to the defendants by the al- petition, it could not be so reached. legation, and must be sustained by proof. It was first made apparent at the close of The mere fact that they were receiving wa- plaintiff's evidence, the defendants having no ter under a claim of right from a partner- | intimation prior to that time, as shown by sbip ditch in which they claimed an interest, the affidavits in support of their motion to pursuant to the direction of one who had amend their answer, that plaintiff relied upbeen regularly appointed water distributer on proof of a several and separate liability by the court, and who had exclusive control (if, indeed, his evidence was sufficient for of the ditch “for the purpose of dividing that purpose) for a recovery against one or and distributing the water received into the a part of the defendants, instead of against same," does not impart knowledge to one so all. The defect, not being apparent on the receiving the water that the water distribu- face of the petition, would be waived unless ter is acting unfairly to others who are en- taken advantage of by answer. Section 3537, titled to water from the same ditch. We Rev. St. 1899. As to when an amended anare of the opinion that, as the plaintiff fail- swer can be filed is a matter regulated by the ed to produce any evidence tending to show


"The party applying to amend during that the alleged wrongful acts of the water the trial shall be required to show that the distributer were instigated or procured by amendatory facts were unknown to bim prior the defendants, or either of them, the court to the application, unless in its discretion the properly struck out all evidence in relation court shall relieve him from so doing." Secthereto.

tion 3588, Rev. St. 1899. From the affidavits 2. At the close of the plaintiff's evidence in support of the motion to amend, which affithe defendants moved the court for permis-davits are in no wise controverted, it does apsion to amend their answer. The motion pear that the amendatory facts were unwas granted, over the plaintiff's objection, known to the defendants prior to the time and the defendants filed the following amend- plaintiff rested his case when the motion ment, viz.: "That there is a misjoinder of was made. The affidavits were before the parties defendant, in this, to wit: That each

trial court, and the amendatory facts constiof the defendants was improperly joined with tuted a defense to the case, if any, as made the other herein upon an alleged cause of ac- by the evidence, and the allowance of the tion sounding in tort, in which alleged tort amendment was clearly within the provisions neither of the defendants was a joint tort- of the statute. feasor or wrongdoer with the other, but 3. At the defendants' request, the court, at each acted, if at all, independently of the the close of plaintiff's evidence, and over the other, without concert of action or unity of objection of the plaintiff, after the answer design between either of them, and that the was amended, as aforesaid, instructed the acts of each of them was the separate, and jury to return a verdict for the defendants not the joint, acts of each of them.” The upon the ground "that the defendants were motion was supported by affidavits as to improperly joined herein because the undisdiligence in making the same, upon discovery | puted evidence shows the acts complained of that the plaintiff sought to recover upon a were not the joint acts of any one defendant several, and not a joint, liability. Such dis- with the other, but were the several, separcovery rested in plaintiff's failure to prove

of , a joint liability, as alleged in bis petition. It

" is urged by plaintiff in error that joint liability is not alleged, but very clearly he is ing been stricken out, the determination of in error in this contention, for the petition the correctness and the right to give this does charge that the defendants committed instruction calls for a consideration of the the acts alleged to have caused the injury evidence then remaining in the case. Such which, in effect, makes the act a joint one. evidence referred to, and it is claimed estabMinter v. Gose et al., 13 Wyo. 178, 78 Pac. lished, prima facie, the alleged wrongs com948. When he rested his case no joint lia- mitted between the 4th and the 23d day of bility had been proven, and the defendants, May immediately prior to the time when the by their answer, had met that issue. The water distributer assumed control of the facts shown by the evidence were not stated ditch. It is alleged that between these dates in the petition, nor did they support the issue “the defendants, without any right whatever, tendered. The answer as originally filed was and without plaintiff's consent, wrongfully, sufficiently broad, and met the issue of joint wantonly, and maliciously diverted all of liability. No notice was given, by the broad-! plaintiff's water from the said canal and est interpretation of the language of the pe- appropriated it to their own use, and detition, that plaintiff in error intended to prived plaintiff of the use thereof.” Mau rely upon proof of a several liability for a re- testifies that, early in May, after he had covery. Had several liability been pleaded, commenced to irrigate, one of John W. Stonit would have been the duty to have raised er's employés had turned the water off from

It of design or concert of

action. "All evidence

the ditch; that Stoner sent for him, and on First, the land of John W. Stoner; then that the evening of the same day Mau sought and of Aaron Stoner; then comes that of Victor had a conversation with Stoner, in which the Forgeon; and the next is the land of plainlatter said he wanted to do some work on tiff. Each owns his own tract, and irrigates the ditch, and had had the water turned off the same separately and independently with at the headgate for that purpose. Mau pro- his own separate lateral or laterals from the tested that it was not the proper time, and ditch which is referred to and known as the told Stoner that he might have done the "Mau canal.” The evidence shows no two work earlier in the season, when it was not of the defendants acting together in the acts necessary to use the ditch for irrigating pur- | complained of, except in cleaning out the poses; that he needed the water at the time, ditch, for which purpose John W. Stoner had and said,, “And when I get to turn the water the headgate closed down, thereby turning on, you always turn it off.” To the latter the water from the ditch, and permitting it remark Stoner replied that "he would take to run down Smith's Fork, from which the the water whenever he felt like it, and supply was drawn. The plaintiff, to prove would turn it off when he felt like it." Mau his allegation of sole ownership to the ditch, says that at this time he was for a day and introduced the contract already referred to, a half deprived of the use of water for do- and relies upon that and other evidence as mestic and irrigating purposes, and that such to the capacity of the ditch to sustain him interferences occurred more or less until May in this contention. The contract was before 24th following, and that he needed water for this court in Mau v. Stoner, 10 Wyo. 125, 67 irrigating purposes during all that time; that Pac. 618. It was introduced in evidence in the carrying capacity, approximately, of the that case by the defendant on cross-examinacanal at that season was five cubic feet of tion of the plaintiff, and before the plainwater per second of time; that he measured tiff had rested his case. It therefore became the flow of water in the ditch at different and was the defendant's evidence upon the times during this period, and that sometimes issues there tried. This court said: “That he didn't find any, at other times four feet, they are joint owners of the ditch is denied and at times a little more than five cubic feet, by the parties bringing this suit, and the and that the flow was about five cubic feet court could not find that it was a joint ownwhenever the water wasn't turned off. His ership until the defendant had affirmatively measurements were made every other day, shown that he had performed his part of the and on these days he observed about a cubic contract in enlarging the ditch.” The confoot of water running in a lateral belonging tract is set out in hæc verba in Stoner v. to defendant John W. Stoner, and that he Mau, 11 Wyo. 366, 72 Pac. 193, 73 Pac. 548, made the measurements in the canal down and is as follows: "This agreement, made toward his own place below this lateral. Up- and entered into between Frank A. Mau, of on direct examination he does not mention the county of Uinta and state of Wyoming, or charge any of the defendants other than | party of the first part, and John W. Stoner, John W. Stoner in connection with the of the same place, party of the second part, wrongs charged. Upon cross-examination the witnesseth: That whereas, the party of the following questions were asked and answers first part is the owner of three hundred and made: “Q. And he [John W. Stoner) usually twenty acres of land situate about two miles in the irrigating season irrigates with water south of Cokeville, in said county, and below these laterals? A. Why, Stoner takes Gustave Mau is the owner of one hundred the water whenever he feels like it, I sup- and sixty acres of land adjoining the same; pose. Q. Who else? A. Aaron has irrigated and whereas, the party of the first part has some of the time. Q. Who else? A. Victor constructed a water ditch from Spring creek Forgeon. Q. Who else? A. No one, that I to said land, and is now the owner of the know of, excepting myself.” The plaintiff is same; and whereas, the party of the second corroborated in this evidence by other witness- / part is desirous to enlarge said ditch and es, except as to the statement that John W. extend the same; and whereas, the followStoner took water from the ditch whenever he ing named parties own the following named wanted to. One witness testified that he number of acres of land upon the line of heard Victor Forgeon say, but not in the said ditch and the extension thereof, to wit: presence of any of the other defendants, that John W. Stoner, 860 acres; Charles Deloney, they would show the plaintiff that the ditch 640 acres; Cyrus E. Wheeland, 360 acres ; didn't belong to him, although the first five Victor Forgeon, 40 acres ; Aaron W. Stoner, feet of water did.

160 acres; now, this indenture witnesseth We have searched the record carefully to that, in consideration of one hundred dolfind if there was any evidence to show, or lars, the party of the first part agrees that tending to show, that the acts complained of the party of the second part shall have the were participated in jintly by all of the de- right to enlarge said ditch to a sufficient fendants. The water for this ditch is taken capacity to carry water sufficient to irrigate from Smith's Fork, and the lands of the dif- all of the above land, and have the right ferent parties to the action, going from the to extend the same from its present terminus. headgate down the ditch, are as follows: And it is further agreed between the parties

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