Himes v. Johnson
Himes v. Johnson
Opinion of the Court
The interest which is claimed by appellant that Alfred Himes had in the subject-matter of this action would not make him a necessary party to it. (C. C. P. 384.) Therefore the plea in abatement raised an immaterial issue, which it was unnecessary to submit to the jury. We are unable to see what relevancy testimony as to the rights of persons on the stream below the premises of both plaintiff and defendant could have to the issues in this action, and we think that the objection to the introduction of such testimony was properly sustained.
The objections made to the instructions given to the jury are, in our opinion, untenable; and we do not think that the Court erred in modifying, as it did, one of the instructions-which appellant’s attorney requested to be given.
The plaintiff recovered a judgment for fifty dollars damages and the costs of the action. We think that the Court erred in giving the plaintiff a judgment for costs. It is true that the plaintiff prayed an injunction, but that was denied, and the action thereafter should haye been treated as one for damages only. It is quite clear that a judgment for fifty dollars damages in such an action would not carry costs.
Judgment and order reversed.
Reference
- Full Case Name
- SIMON HIMES v. N. P. JOHNSON
- Cited By
- 15 cases
- Status
- Published
- Syllabus
- Action fob. Diversion of Water—Parties—Tenants in Common.—In an action for the diversion of water from a ditch and land, owned by the plaintiff and others, his co-tenant is not a necessary party. Id. —Relevancy of Evidence.—In such an action, testimony, as to the rights of persons on the stream below the premises of both plaintiff and defendant, can have no relevancy to the issue, and is therefore inadmissible. Id.—Water Rights upon Public Lands—Instructions.—The Court (at the instance of the plaintiff) in effect instructed the jury, that the appropriator of the waters of a stream upon the public lands of the United States, for a useful purpose, acquired a right to the same against parties subsequently acquiring title from the government, and all other persons, except previous appropriators; and refused to instruct the jury (at the instance of the defendant), that such appropriation must have been made in the manner recognized by the local customs, laws, or decisions of the Courts of this State; but modified the same by striking out the words “ local customs,” and gave the instruction as modified. Held: The objections to the instructions given were untenable, and the Court did not err in modifying the instruction asked for by defendant. Id.—Costs.—In an action for damages and an injunction, where the injunction is denied, a judgment for less than three hundred dollars does not carry costs.