shown that the only permissible inference is defendant, in 1904, constructed a ditch from Water Courses, Dec. Dig. § 107.*] The court, in a suit in equity, should make specific findings of fact which respond to and dispose of the material issues. Dig. 88 935-938; Dec. Dig. § 396.*] 6. APPEAL AND ERROR (§§ 1176, 1178*)— Ap- Where the trial court in an equity suit failed to make specific findings which responded to and disposed of the material issues, the court on appeal could either reverse the judgment FRICK, C. J., and MCCARTY, J., concur. and remand the case for new trial, or determine (39 Utah, 282) MUNSEE v. MCKELLAR et al. (Supreme Court of Utah. Jan. 4, 1911. On Application for Rehearing, June 14, 1911.) 1. TRIAL (§ 395*)-FINDINGS OF TRIAL Court -SUFFCIENCY. A finding of fact, in a suit involving the ownership and use of the waters of springs, that plaintiff has no right, title, or interest in or to the waters is a mere conclusion, and is insufficient.1 [Ed. Note.-For other cases, see Trial, Cent. Dig. § 923; Dec. Dig. § 395.*] 2. TRIAL (§ 395*)-FINDINGS-UNCERTAINTY. A finding that the allegations of the complaint of plaintiff contrary to the findings are untrue is objectionable as too general and uncertain. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 928; Dec. Dig. § 395.*] 3. APPEAL AND ERROR (§ 1071*)-HARMLESS ERROR-FINDINGS. Where issues are not expressly found, but are necessarily negatived by specific findings, or where it clearly appears from the specific findings that issues not found would necessarily be adverse to the defeated party, had findings thereon been made, a failure to find on such issues is not reversible error, provided the findings made support the judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. 8 1071.*] 4. WATERS AND WATER COURSES (§ 107*)SPRINGS-ISSUES-FINDINGS. Where, in a suit involving the ownership and the use of the waters of springs, plaintiff showed an appropriation of the waters in 1895, by the construction of ditches, by means of which he diverted the waters and made a beneficial use of them until interfered with by defendant, and defendant showed that in 1904 he constructed a ditch and thereby diverted and used all the waters of the springs for beneficial purposes, but did not show that the waters were then unappropriated, the findings that 1 Dillon Imp. Co. v. Cleaveland, 32 Utah, 3, 88 Pac. 670; Everett v. Jones, 32 Utah, 491, 91 Pac. 360; Utah Association of Credit Men v. Home Fire Ins. Co., 102 Pac. 631; Volker-Scowcroft Lumber Co. v. Vance, 103 Pac. 974, 24 L. R. A. (N. S.) 321. the facts and direct the entry of judgment accordingly. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 4588-4596; Dec. Dig. §§ 1176, 1178.*] On Application for Rehearing. 7. APPEAL AND ERROR (§ 1178*)-APPEAL IN EQUITY SUIT-FINDINGS. Where, in a suit in equity, the specific findings did not respond to and dispose of the material issues, and the matters involved might not have been fully litigated by the parties because of erroneous rulings of the trial court, the court on appeal will not itself determine the facts and direct the entry of a proper judg ment, but will reverse the judgment and reand the case, with directions to grant a new trial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. § 1178.*] Appeal from District Court, Tooele County; Geo. G. Armstrong, Judge. Action by Eugene Munsee against Joseph McKellar and another. From a judgment for defendants, plaintiff appeals. Reversed, and new trial granted. Halverson & Pratt, for appellant. Moyle & Van Cott, for respondents. STRAUP, J. This suit involves the ownership and use of the waters of certain springs, called Munsee's springs, situate near the desert, in Tooele county. The plaintiff is the owner of a tract of land consisting of about 120 acres; the defendants the owners of about 160 acres adjoining. The springs are about three miles from the plaintiff's land and a little farther from the defendants' land. It was alleged by the plaintiff that at the time of the filing of his complaint he was, and for more than 13 years prior thereto he had been, the owner of the waters of the springs and of a ditch from the springs to his lands; that during all of such times, by means of the ditch, he had diverted and used the waters for irrigation and culinary purposes, and for the watering the waters of the springs on their lands, exof live stock, and that the defendants as- cept when turned off and interfered with serted an unfounded claim or interest in and by the plaintiff. The defendants further testo the waters and the ditch. The defend-tified that in 1904, when their ditch was conants denied the allegations of the complaint, structed and the waters diverted by them, and for affirmative relief alleged that they, the waters of the springs were then running in 1904, for the purpose of irrigation and for to waste down the wash, and that there domestic purposes, constructed a ditch from were no indications of any ditch running the springs to their lands, by means of which from the wash or from the springs to plainthey diverted all the waters of the springs tiff's lands, and that there was not anything and used them on their lands, and ever to show that the waters of the springs had since so continued to use them. Each pray- ever been used on plaintiff's lands. Other ed for a judgment quieting title. The plain-witnesses on behalf of the defendants testitiff filed a reply, denying the affirmative alle gations of the answer. The case was tried to the court. Evidence was introduced on behalf of the plaintiff tending to show that in the year 1895 he settled upon his land and built a house, a stable, and a corral. The waters of the springs, as testified to by some of the witnesses, consisted of about a one-half second-foot flow; others testified that they were sufficient to fill a good plow furrow, and in high water time ran down the wash. In 1895 the plaintiff constructed a ditch from the wash to his land, and used the water upon it for irrigation. Later he constructed a ditch from the springs to a lake and from there to his lands. Experiencing some difficulty in having the waters reach his lands in that manner, he constructed another ditch direct from the springs to his lands, which was completed in 1899. Between 1895 and 1904, prior to the time the defendants claimed an interest in the water, the plaintiff also used the waters of the springs to irrigate some lands near the lake, about two miles from his lands, upon which he raised some potatoes, and he also irrigated seven or eight acres of the land subsequently acquired by the defendants, upon which he also raised some crops. He also cultivated and raised crops on about eight acres of the lands owned by him, which were irrigated by the waters of the springs, and also used such waters on a meadow on his lands, consisting of about 30 acres, and from which he took from 20 to 30 tons of hay annually; and he also watered his stock, consisting of 60 to 200 head. Plaintiff and his witnesses further testified that from 1895, until interfered with by the defendants, he had diverted and used all of the waters of the springs for irrigation and for domestic purposes, and for watering live stock. Evidence was adduced on behalf of the defendants tending to show that in the fall of 1903, or spring of 1904, they entered upon their lands and built a house and a corral, and in the spring of 1904 they constructed a ditch from their lands to the wash, by means of which they diverted the waters of the springs and used them upon their lands; that in 1904 and 1905 they had cultivated and irrigated about 2 acres of ground, about 10 acres in 1905, and 12 or 14 acres in 1907, and that from 1904 to 1907 they had used all 116 P.-65 fied that they saw no ditch running from the wash or from the springs to plaintiff's lands. It was also testified to, on behalf of the defendants, that there were a number of springs, variously estimated at from 4 or 5 to 11, on the lands of the plaintiff, and that his meadow was watered from such springs, and not from the Munsee's springs, and that his meadow was low and wet and needed draining, and that the ground cultivated by the plaintiff on his lands consisted of only about one acre, and was watered, not from the waters of the Munsee's springs, but from a spring or springs on his own lands. The plaintiff and other witnesses testified that the ground cultivated by him on his land, and some of the meadow lands, were so situated that they could not be watered from the springs on his lands, and that the lands cultivated by him, and a portion of the meadow lands, were irrigated with the waters of the Munsee's springs. structed ditches about the Munsee's springs, That the plaintiff, prior to 1903, had consome of which were a quarter to a half a mile in length, and a ditch or ditches running from the springs down the wash and towards the plaintiff's lands, and that he had diverted the waters of the springs and used them on lands cultivated by him and upon which he raised crops near the lake, and on lands subsequently acquired by the defendants, is shown by the evidence without any substantial conflict. As to whether the plaintiff, prior to 1904, had extended the ditches to his lands, and whether, prior to that time, he had used any of the waters of the Munsee's springs on lands then owned by him, the evidence is in conflict. In that respect the plaintiff, and other witnesses on his behalf, testified that they ploughed and dug ditches from the springs and from the lake running to plaintiff's lands, by means of which the waters of the Munsee's springs were, prior to 1904, conveyed to and used upon the lands then owned by the plaintiff. Defendants and their witnesses testified that in 1904 there were no indications of any ditch running from the wash or from the springs to plaintiff's lands. Some of them testified that there then were no such ditch es; others merely testified that as they cas ually passed over the country they saw no such ditches. The defendants, however, and other witnesses on their behalf, who also | We think it equally true that the finding that had knowledge of the facts, testified that in the allegations of his complaint "contrary to 1904, and before the defendants constructed these findings are untrue" is not only too gentheir ditch, there were indications of a ditch eral, but is also uncertain. Bank of Woodor ditches about the springs, and indications land v. Treadwell, 55 Cal. 379; Ladd v. that land near there, and some ground on the Tully, 51 Cal. 278. lands subsequently acquired by the defendants, had been cultivated. By whom the ditches had been made and the ground cultivated, they testified they did not know. [3] Counsel for defendants, however, urge with some force that the specific findings made by the court relating to the affirmative allegations in the answer necessarily negative the allegations of the complaint. It undoubtedly is true that, where issues are not expressly found, but are necessarily negatived by other specific findings of fact, or where it is clearly made to appear from the specific findings of fact found that the issues not found would necessarily have been adverse to the appellant, had they been found, a failure to find on such issues is not reversible error, if the findings which are made are sufficient to support the judgment. The court found that in the year 1904 the defendants, for the purpose of irrigating their lands and for the watering of live stock, and for culinary purposes, constructed a ditch from their lands to "those certain natural springs of water which were then unappropriated waters, known as Munsee's springs," and appropriated and diverted all the waters of the springs, and conveyed them to their lands for irrigation and the growing of crops, for culinary purposes, and for watering live stock, and that they ever since had used all of the waters of the springs for such purposes; that they had cultivated about 14 acres of their lands, upon which crops had been raised by them, and that the water so used by them was necessary for such purposes. The court further found "that said plaintiff, Eugene Munsee, has no right, title, or interest in or to the said waters of said springs, or any part thereof, and that the allegations of his complaint contrary to these findings are untrue." It will thus be observed that the court made findings only with respect to the issues raised by the affirmative allegations of the defendants, and made no findings with respect to the issues raised by the complaint of the plaintiff. Upon the findings so made, the court rendered a judgment awarding the use of the waters of the springs to the defendants, and adjudg-mestic purposes. The defendants alleged. ed that the plaintiff had no right, title, or interest in or to them, and enjoined him from asserting any. [1, 2] The plaintiff on appeal, among other things, urges that all the material facts presented by the issues were not found; that the finding that the plaintiff had no right, title, or interest in or to the waters was a mere conclusion; and that the finding that the allegations of his complaint contrary to the findings was untrue was uncertain and too general. It is also urged by him that the findings are not supported by, but are contrary to, the evidence. In the cases of Dillon Imp. Co. v. Cleaveland, 32 Utah, 3, 88 Pac. 670, Everett v. Jones, 32 Utah, 491, 91 Pac. 360, Utah Association of Credit Men v. Home Fire Ins. Co., 102 Pac. 631, Volker-Scowcroft Lumber Co. v. Vance, 103 Pac. 974, 24 L. R. A. (N. S.) 321, we expressed our views upon questions of insufficiency of findings. Tested by what we said there, we think the findings here are insufficient. That the finding that the plaintiff has no right, title, or interest whatsoever in or to the waters in question is [4] We think, however, the principle is not applicable to the case in hand. The plaintiff and the defendants were both claimants and actors. The issues tendered by each were not in general terms. The pleadings were so framed that the controversy turned upon particular facts which, in order to conform to the issues presented, required specific findings. That is, it was alleged by the plaintiff, and evidence was adduced tending to support the allegations, that in 1895 he had made an appropriation of the waters in question by the construction of a ditch or ditches. by means of which he diverted the waters of the springs and made a beneficial use of them from 1895 until interfered with by the defendants, and that he had diverted and used all of the waters of the springs for irrigation, watering of live stock, and for do and adduced evidence tending to support their allegations, that in the year 1904 they constructed a ditch, and by means of which they diverted and used all of the waters of the springs for beneficial purposes. It was not alleged by them that the waters were then unappropriated, or that they were then public waters. It was merely alleged by them that they dug a ditch and diverted and used all the waters of the springs for beneficial purposes. The findings which the court made in these particulars are not in conflict with the allegations of the complaint that the plaintiff, prior to 1904, was, and in 1895 became, the owner of the waters and of the ditch constructed by him, and by means of which the waters had been diverted and used by him for a beneficial purpose, except that he used the waters since 1904. These observations are particularly pertinent, when the issues and findings are viewed in the light of the evidence. In this connection, it is urged that the statement in the findings that the defendants, in 1904, dug a ditch from "those certain unappropriated waters," necessarily negatived a prior appropriation of them by the plaintiff. That depends altogether upon what view the court took of what constituted an appropriation, and therein lies the vice of such a finding, when viewed in the light of the pleadings and the evidence. If the court took the view that to constitute a valid appropriation it was necessary for the plaintiff to have used the waters on lands owned by him, or in which he had an interest, then the court misconceived the law. If by that finding the court meant that the plaintiff, prior to 1904, had constructed no ditch and had diverted none of the waters of the springs for a beneficial purpose, then we unhesitatingly say that the finding is contrary to the evidence. If by such a finding it was meant that the plaintiff, prior to 1904, had constructed a ditch or ditches, by means of which he had diverted and used the waters of the springs, but thereafter and before 1904 had abandoned them, then we say no such issue was presented. Again, if from such a finding we are to understand that the plaintiff had constructed a ditch or ditches, but not running to his land, or that he had not used the waters of the springs on his land, or that his land was of such a character that it did not require irrigation, or that he otherwise had not made a beneficial use of the waters, then we are compelled to reach such results from mere deductions and inferences, coupled with the uncertainty of not knowing which of such results was deduced or inferred, or which of such facts found by the trial court. We regret that we have but the conclusions of the court, and not its judgment on the facts relating to the issues presented by the complaint, and that the labor is imposed upon us to determine such facts for ourselves. [5,6] The trial court, in an equity, as well as in a law, case, should itself assume the labor of making specific findings of fact which respond to and dispose of the material issues; and in an equity case, where that has not been done, we may reverse and remand, or we may ourselves determine the facts and direct a judgment to be entered accordingly. We have concluded to do the latter. The amount involved is small. Nothing is made to appear by the record to justify a retrial of the case. If the proper disposition of the case depended alone upon questions of fact as to whether the plaintiff, prior to 1904 or 1903, diverted and used the waters in question on lands then owned and occupied by him, we would, on such a conflict of evidence in that respect as is here shown by the record, be disposed to remand the case to the trial court for a finding of such facts. But we think it is clearly made to appear that the plaintiff, prior to 1903, by means of ditches, diverted and used the waters of the springs for a beneficial purpose on lands other than those owned by him; that before the diversion and use by the defendants of the waters in question the plaintiff had made a valid appropriation of them; and as there is no plea, nor proof, of an abandonment we think it follows that the waters should be awarded to him as prayed for in his complaint. The judgment of the court below is there` fore reversed, and the case remanded to the trial court to make findings of fact, finding the issues presented by the complaint in favor of the plaintiff and against the defendants on their affirmative allegations that the waters, when diverted and used by them, were then unappropriated public waters; and to render a judgment in favor of the plaintiff and against the defendants as prayed for in the complaint, awarding the right and title to the use of the waters in question to the plaintiff, and restraining the defendants from asserting any claim or right therein or thereto hostile to that of the plaintiff. Costs to appellant. It is so ordered. FRICK, C. J., and MCCARTY, J., concur. On Application for Rehearing. STRAUP, J. [7] An application for a rehearing is made. We see no reason for granting it. We are well satisfied with the conclusion reached by us reversing the judgment. We are not so well satisfied with the order made by us directing a judgment for the appellant. Some matters may be involved in such a judgment which may not have been fully litigated by the parties, because of certain rulings made and views entertained by the court below contrary to the views upon which the case was ruled by us. Our former order directing a judgment for the appellant will therefore be set aside. And the final judgment of this court is that the judgment of the court below be, and the same is, reversed, and the case remanded, with directions to grant a new trial. Costs to appellant. Let the remittitur, on application, go down at once. FRICK, C. J., and MCCARTY, J., concur. (39 Utah, 276) SPIELBERG v. A. KUHN & BRO. et al. (Supreme Court of Utah. Jan. 23, 1911. Rehearing Denied June 14, 1911.) 1. LIBEL AND SLANDER (§ 123*)-QUESTION FOR JURY. In an action for libel, evidence held to render the question of justification one for the jury. [Ed. Note. For other cases, see Libel and Slander, Cent. Dig. § 361; Dec. Dig. § 123.*] 2. LIBEL AND SLANDER (§ 101*)-BURDEN OF PROOF. Where a communication was qualifiedly privileged, the burden of proving express malice was on plaintiff. [Ed. Note. For other cases, see Libel and Slander, Cent. Dig. § 278; Dec. Dig. § 101.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 3. LIBEL AND SLANDER (§ 45*)-PRIVILEGE. Where plaintiff in libel had been an employé of defendant and of another, and was engaged with both in separate lawsuits in which his conduct and dealings with them were involved, communications by defendant to the other were privileged if made in good faith and without malice. opinion and the facts as you know them in his case." The letter was written on a letter head of A. Kuhn & Bro. and was signed, "A. Kuhn & Bro., Arthur Kuhn, Sec.-Treas." On the 29th day of April, Wener, Cohen & Co. in reply wrote A. Kuhn & Bro.: "That we would be very much pleased to supply you with some information regarding his (plaintiff's) actions with us, but to enable us to frame this information, so that it can be used in your suit against him, we would ask you to kindly inform us at what time dur[Ed. Note.-For other cases, see Appeal and ing the months of August, September and OcError, Cent. Dig. §§ 1283-1289; Dec. Dig. 8tober, or previous to these months, he was 206.*] [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 138-140; Dec. Dig. g 45.*] 4. APPEAL AND ERROR (§ 206*)-REVIEW. Rulings on questions to witnesses are not reviewable unless proper objections were made at the time. in your employ and under contract with you. Appeal from District Court, Second Dis- Upon receipt of this information we will trict; J. A. Howell, Judge. Action by William Spielberg against A. Kuhn & Bro., a corporation, and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed. P. T. Farnsworth, Jr., for appellant. H. H. Henderson, for respondents. Spiel gladly mail you whatever communications STRAUP, J. This is an action for libel. The plaintiff, a traveling salesman, had been in the employ of Wener, Cohen & Co., clothing merchants of New York, soliciting orders for them at Ogden and elsewhere. Later he entered the employ of the defendants, who also are clothing merchants at Ogden. It was claimed by Wener, Cohen & Co. that while the plaintiff was in their employ, and receiving pay and drawing money from them, he also was working for the defendants. At a time when the plaintiff was temporarily in New York, Wener, Cohen & Co. brought an action against him to recover back the money paid to him by them, amounting to something like $400 or $500. The plaintiff also had some difficulty with the defendants, who, he claimed, wrongfully and in violation of a contract, discharged him. He thereupon brought a suit against them at Ogden for breach of contract claiming damages in the sum of $6,625. Arthur Kuhn, one of the defendants, and the secretary and treasurer of the defendant A. Kuhn & Bro., a corporation, and employed by it as a bookkeeper and accountant, on the 25th day of April, 1908, wrote to Wener, Cohen & Co., notifying them that the plaintiff had "jumped his contract with" them, and was "seeking to bring the matter into court"; that they had been informed that he had "done some crooked work" to the injury of Wener, Cohen & Co. while in their employ; and seeking information from them "showing exactly the manner in which you were treated by" the plaintiff. He further stated in the letter, "We wish to say in return for this favor that if there is anything which we can possibly do to assist you in bringing Spielberg to justice we shall do so. We find him a very peculiar The action for libel is based on this letter. character, and we should like to have your The particular statements alleged to be li |
