Joyce v. Rubin

Citations

• 23 Idaho 296
• 130 P. 793
• 1913 Ida. LEXIS 77

Syllabus

<p>Watercourse — Water Bights — Adjudication of — Pleadings—Amendments — Proof—Theory of the Case — Duty of Water — Location Notice — Posting of — Diversion—Change of Place— Abandonment — Cross-complaint—Denials—Immaterial Allegations — Amount of Water Bequired — Decree—Amendment of— Beclamation of Land — Diligence in.</p> <p>(Syllabus by the court.)</p> <p>1. In an action to determine and settle the priorities and amount of water to which each party to a suit is entitled from a certain stream, it is left to the court to determine from the evidence such priorities and amounts.</p> <p>2. Each party by way of complaint or cross-complaint is required to set up the ultimate facts upon which his claim of right is based, and it is the duty of the court to make its finding of facts upon the evidence, and if the allegations of the pleading do not conform to the proof offered, the court may direct the pleadings to be amended to conform to such proof.</p> <p>3. Seld, that the trial in this ease was conducted as is customary in water suits, and upon the theory that all parties submitted to the court evidence of the dates of the appropriation of water and of the amounts to which they were entitled.</p> <p>4. ’ Under the provisions of sec. 4225, Rev. Codes, no variance between the allegations of the pleading and the proof is to be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.</p> <p>5. Sec. 4226, Rev. Codes, provides that where the variance is not material, the court may direct the fact to be found according to the evidence, or may order an immediate amendment.</p> <p>6. Where the cross-complaint is not answered and the cross-complainant proceeds to trial without objection, as though an answer had been filed, he thereby waives the answer.</p> <p>7. Seld, the record shows that the action was tried upon the theory that all of the material allegations of the complaint and cross-complaints were