Winter v. Fulstone

<p>Water Rights — Irrigation — Findings — Evidence. — Findings of the trial court, based upon conflicting testimony, and aided by a personal inspection of the subject of controversy, will not be disturbed on appeal.</p> <p>Idem — Findings Sustained by the Evidence. — The various findings of the court reviewed and evidence held sufficient to sustain the findings. (See opinion.)</p> <p>Idem — Finding, as to Flow and Use op Water, Construed. — A finding that “defendant is entitled to a decree that during the non. irrigating months the waters of Jack’s Valley creek shall flow in equal portions in the north and south beds or channels of said stream, and that both plaintiff and defendant may use said water in the non-irrigating season for stock and domestic purposes, as it flows across their respective land, in the natural beds or channels,” is not a finding that defendant has the right to use one-half of the water flowing in the stream, nor any given quantity thereof, except sufficient for his stock, etc..</p> <p>Idem — Evidence — Opinion op Witness — Facts. — A question asked a witness as to which of two channels the water of a creek would flow in if unobstructed does not call for the opinion of the witness, but for a fact derived from personal observation, and is not an inquiry calling for expert testimony.</p> <p>Error — When Cured. — Error in excluding testimony is cured by its admission at a subsequent stage of the trial.</p> <p>■On Rehearing — Appeal—Rehearing—Modifying Judgment. — On petition for rehearing, where complaint as to a portion of the judgment is for the first time made, and it appears that such portion was not author zed hy the pleadings, the judgment will be modified in that respect, and the rehearing denied.</p>