I concur in the conclusion that the court erred in granting the motion for nonsuit. The motion was as follows:
"The intervenors also move at this time for a nonsuit on the grounds that the plaintiff has wholly failed to allege, or prove, any cause of action; and has wholly failed to allege, or prove, any grounds for injunctive relief."
This court has repeatedly held that such a motion is not sufficiently specific and should be disregarded, and that the insufficiency of a complaint to state a cause of action is not a ground for motion for nonsuit. (Mole v. Payne, 39 Idaho 247,227 P. 23; Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295,62 P. 925; Coulson v. Aberdeen-Springfield Canal Co., *Page 381 39 Idaho 320, 227 P. 29 (concurring opinion of Justice Budge and cases cited).)
I cannot concur in holding that the plaintiffs made even aprima facie case of the broad effect indicated by the opinion. It was not "established" that "appellants diverted and applied . . . . the waters . . . . without any interference or adverse claim whatever." Nor can it be said that "from the date of the construction of the dam by appellants, Scott Slough ceased to be a tributary of Snake River." (Turner v. James Canal Co.,155 Cal. 82, 17 Ann. Cas. 823, 99 P. 520, 22 L.R.A., N.S., 401; Kinney on Irrigation Water Rights, 2d ed., vol. 1, secs. 303, 317; vol. 2, sec. 652.)
While the plea of the judgment in the Snake River suit made it originally a matter of affirmative defense, when it was conceded by plaintiffs that they were parties to that suit and decreed 1,700 inches of water therein, and when, as appears, a large portion, if not all, of the waters involved herein were plainly Snake River waters, it could not be properly found, nor can we say, from the meager evidence, that "when the so-called Snake River water suit was tried, the waters in Scott Slough were not considered to be a part of the river, were not involved in the suit and were not decreed as a part of the waters of Snake River, but the waters of the slough remained an independent water supply owned and applied to a beneficial use by appellant company and its stockholders."
To say that plaintiffs made a prima facie case, and the nonsuit was for that reason improperly granted, is to imply that in the absence of further proof by the defendants or intervenors, the plaintiffs would be entitled to a decree, without expressing the effect or limitations of such decree.
The utmost to which plaintiffs would have been entitled would be an injunction against interference with the enjoyment of the waters until, in a proper action, the ownership might be decreed. There was no proper proof on which to quiet title to, and decree ownership of, these waters in their favor, nor was this a proper action for such purpose. (C. S., sec. 7036.) *Page 382
I cannot concur in holding that the court erred in excluding the evidence complained of, offered in the form and manner in which it was presented.