MARICOPA COUNTY MUNICIPAL WATER CONSERVATION DISTRICT NUMBER ONE, a Corporation, Appellant,
ROOSEVELT IRRIGATION DISTRICT, a Corporation, Appelle
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.
Messrs. Hayes, Stanford, Walton, Allee & Williams, for Appellant.
Messrs. Armstrong, Kramer, Morrison & Roche, for Appellee.
[39 Ariz. 358] LOCKWOOD, J.
Roosevelt Irrigation District, a corporation, hereinafter called plaintiff, brought suit against Maricopa County Municipal Water Conservation District No. 1, a corporation, hereinafter called [39 Ariz. 359] defendant, to recover for damages which plaintiff alleged were caused to its irrigation canal by reason of a large quantity of water which it claimed defendant had diverted from its natural course and collected and cast upon the canal of plaintiff. A general demurrer to the complaint was sustained, and, plaintiff refusing to amend further, judgment was rendered in favor of defendant. From this judgment an appeal was taken to this court, and we reversed the judgment with instructions to overrule the general demurrer, holding that the complaint stated a cause of action. The case was then tried to a jury, which returned a verdict in favor of plaintiff in the sum of $1,500, and, after judgment and the usual motion for new trial, this appeal was taken.
The first question before us is one of procedure. It is urged by plaintiff that the motion for new trial was prematurely filed, and therefore, under the provisions of section 3660, Revised Code of 1928, we cannot consider the sufficiency of the evidence. The matter turns upon when the judgment was "rendered." We have held previously that the true judgment is the oral judgment pronounced by the judge from the bench, as recorded in the minutes, instead of the formal written judgment which is usually and properly signed by the trial judge and filed at or after the time of rendition of judgment. Kinsley v. New Vulture Min. Co., 11 Ariz. 66, 90 P. 438, 110 P. 1135; Moulton v. Smith, 23 Ariz. 319, 203 P. 562. It appears from the record herein that the verdict was returned on May 28, 1930. On August 4, 1930, the following minute entry appears:
"Comes now the Plaintiff by its Counsel, G. W. Shute. Thereupon, it is ordered by the Court for Judgment on the verdict."
Standing alone, the minute entry is undoubtedly ambiguous; it does not state whether the court "rendered" judgment, or merely ordered that upon the [39 Ariz. 360] doing of some further act it would then "render" judgment. However, the record also shows that counsel for plaintiff formally moved for judgment on the verdict on July 31st. In view of these circumstances, and the fact that no objection was made in the lower court to the motion for new trial filed August 12th on the ground that it was premature, we think plaintiff is estopped from contending the minute entry does not show an actual rendition of judgment on August 4th, in which case the motion for new trial was not premature, and we may consider the question of the sufficiency of the evidence.
Some years since, in the case of Moulton v. Smith, supra, we referred to the unfortunate practice of many superior courts of the state
in so conducting their proceedings as to confuse counsel as to the date upon which judgment was actually rendered, and referred with approval to and explained at length the custom then and since followed in the superior court of Cochise county to prevent such misunderstanding. Since that time about half of the superior courts of this state have adopted some such practice; the remaining ones have apparently ignored it. As a result, there is hardly a term of this court at which some case is not presented where the result is more or less affected by the failure of the trial court to observe our suggestion in this respect. We again urge upon the trial judges that they follow some system whereby the rendition of judgment and the filing of the formal written judgment will be synchronous. We proceed, then, to consider the merits of the appeal.
There are some nine formal assignments of error, but we think it will simplify and clarify the case if we first state the general rule of law fundamental in actions of this nature, and then apply the standard as laid down to the facts as they are shown by the record.
[39 Ariz. 361] It appears from the briefs of counsel for defendant that we failed to make clear to them the principle of law which we stated on the previous appeal of this case. This rule we repeat as follows: A land owner has no right to collect surface water in an artificial channel, and discharge it in large quantities upon the land of a lower owner to his damage. See Roosevelt Irr. Dist. v. Beardsley Land & Invest. Co.,36 Ariz. 65, 282 P. 937. It makes no difference whether these surface waters arose originally upon the land of the party who collects them, or upon the lands of another. Neither is it material that such collection was for the purpose of protecting the land of the person who so collects them, or whether the damage done to the lower owner is greater or less than that which would result to the collector if he did not protect his own lands. While, as we indicated in the previous opinion, the trial court in determining whether immediate injunctive relief should be allowed may consider the effect on defendant, the general welfare of the country and the interests of good husbandry, yet if, after all other methods of avoiding repeated damage from the collected waters have been exhausted, it appears that the only way to prevent it is to restore such surface waters to their original unobstructed natural channels, such course must be followed. McDonald v. Perry,322 Ariz. 39, 255 P. 494. This is the fundamental principle which we laid down on the previous appeal, and upon its proper application ...