Appeal from Third District.

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ments in defense and in support of, and merely to hold, the judgment appealed from. What is attacked by the party appealing may, as to him, be defended and held by cross-assignments without a cross-appeal.

Then this is a law case. The judgment, as has been seen, is not one of separate and distinct parts, but is an entirety awarding the plaintiff a specified sum of money. Its feature of entirety cannot be disturbed by searching the pleadings, or the findings, or even the evidence, were that 5 also before us, to ascertain how the judgment was reached and what there is to support it. Notwithstanding plaintiff's misfit description of the judgment in its notice of appeal, still its appeal, to be regarded a good appeal, must be regarded an appeal from such judgment of entirety. There is no other. If, on a review of the proceedings resulting in the judgment, error should be found to plaintiff's prejudice, still we would not be authorized to enhance the judgment; we could only reverse it and grant a new trial. This is so because we are not authorized, in a law case, to try the issues on the record and make, or direct, findings, or treat as found that which ought to have been found.

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And should error be found and a new trial granted, the defendant, on a retrial, would not be precluded or estopped from controverting or disputing plaintiff's claim in whole or in part. Surely its admission made by its counsel, in argument to the court, that on this trial there was no evidence, independently of that relating to the counterclaim, to dispute plaintiff's evidence as to the amount of its claim, would not estop or preclude it on a retrial from controverting by evidence the whole or a part of plaintiff's claim; nor on this appeal from disputing on the record a part of plaintiff's claim, or, on cross-assignments, from enhancing the counterclaim, at least to uphold and maintain the judgment which was rendered and entered.

Thus it is not made to appear that the plaintiff was so absolutely and unquestionably entitled to the benefits and advantages awarded by the judgment that its right to accept and keep them cannot possibly be affected by the appeal, or that it, in all events, is entitled to the amount awarded by

Sierra Nevada Mill Co. v. Keith-O'Brien Co., 48 Utah 12.

the judgment, or that all that possibly could be litigated on the appeal, or on a retrial, would be to ascertain whether the plaintiff was, or was not, entitled to a greater or additional sum. We think the case within the general rule that a litigant is not permitted to accept the fruits of a judgment and still prosecute an appeal from it. Here the plaintiff voluntarily took advantage, not only of a part of a judgment in its favor, but of the whole of it, and accepted payment in full thereof and satisfied and discharged the whole of the judgment. All of the issues and matters and things presented, both by the complaint and counterclaim were merged in, and were determined by the judgment. There is no doubt of that. And when the plaintiff voluntarily accepted full payment of the judgment, not of a part, but of the whole of it, and satisfied and discharged it, not in part, but the whole thereof it likewise satisfied and discharged everything that was merged in, and that was determined and adjudicated by the judgment. The views herein expressed and the conclusions reached are supported by the numerous cases noted and cited in McKain v. Mullen, 65 W. Va. 558, 64 S. E. 829, 29 L. R. A. (N. S.) 1.

The appeal, therefore, must be dismissed, with costs. Such is the order.

FRICK and MCCARTY, JJ., concur.

Appeal from Third District.

REESE et al. v. QUALTROUGH et al.

No. 2804. Decided March 30, 1916. (156 Pac. 955.)

1. PLEADING-REPLY-STATUTE.

Under the statute the plaintiffs' reply, which constituted merely a general denial, was unnecessary. (Page 27.)

2. PLEADING COMPLAINT-SEPARATE CAUSES OF ACTION. Although, where facts are commingled in a complaint which, if separated, different defenses would apply, or where defendants had a defense to a certain group of facts, the plaintiffs will be required to separate them, a complaint which alleged that the defendants had caused large quantities of mud and debris to flow into the plaintiffs' fishponds over a considerable period of time, the wrongful acts being so numerous, continuous, and blended together as to constitute but a single wrong, was sufficient. (Page 27.)

3. LIMITATION OF ACTIONS-PARTICULAR ACTIONS-INJURIES TO "PERSONAL PROPERTY." An action for damages caused by the pollution of fishponds, the plaintiffs not owning any interest in the real estate on which the ponds were located, was an action for damages to personal property, as a right or interest which a person has in things personal, and was barred after three years under Comp. Laws 1907, Section 2877, Subd. 3, providing that all actions for taking, detaining, or injuring personal property must be commenced within three years and not an unclassified action under Comp. Laws 1907, Section 2883, providing that an action for relief not otherwise provided for must be commenced within four years. (Page 29.)

4. JUDGMENT-DOCKET ENTRY AS EVIDENCE-JUDICIAL RECORDS. An entry in a previous action between the same parties which never proceeded to final judgment, taken from the docket of the clerk of the court, was inadmissible, since the judgment is the only competent evidence to prove a prior adjudication. (Page 34.)

5. CONSPIRACY-NATURE AND ELEMENTS. The fact that certain persons have a joint interest in property and unite in an action affecting it is not evidence from which a conspiracy could reasonably be inferred. (Page 34.)

6. EVIDENCE-DOCUMENTARY EVIDENCE-JUDICIAL RECORDS. The complaint in a former action between the same parties is the only competent evidence respecting the plaintiffs' claims in that action. (Page 34.)

Reese et al. v. Qualtrough et al., 48 Utah 23.

7. JUDGMENT EVIDENCE TO SUSTAIN JOINT OWNERSHIP OF CODEFENDANTS. Where the defendants or some of them, with knowledge of the others from day to day, caused the pollution of water flowing from their property into the plaintiffs' fishpond, the joint interest of the defendants in the property on which the acts were committed was sufficient to authorize a judgment against all of the defendants. (Page 34.)

8. APPEAL AND ERROR-REVIEW-VERDICT.

The appellate court is

bound by the findings of the jury if supported by some substantial evidence. (Page 34.)

9. APPEAL AND ERROR-REVIEW-PREJUDICIAL ERROR-ADMISSION OF EVIDENCE. In an action for damages caused by the pollution of water flowing into plaintiffs' fishpond, the admission of an entry made in the course of proceedings in a prior action between the same parties which did not proceed to judgment was prejudicial error. (Page 34.)

10. TRIAL-INSTRUCTIONS.

In an action for damages caused by the pollution of water flowing into the plaintiffs' fishpond, an instruction that the defendants were not legally required to, permit water coming from their spring to flow into the plaintiffs' fishponds below, and that, if the plaintiffs were damaged by reason of the defendants not permitting their spring water to flow into the fishpond, no recovery could be had for such damages, if qualified by the statement that, if defendants did permit any water to flow from their spring into the plaintiffs' fishpond, they then had no right to befoul the water or cause refuse to be carried by it to the fishpond, was improperly refused. (Page 36.)

Appeal from District Court, Third District; Hon. Geo. G. Armstrong, Judge.

Action by George E. Reese and others against Frank Qualtrough and others.

Judgment for plaintiffs. Defendants appeal.

REVERSED and REMANDED.

Hurd & Hurd and E. B. Critchlow, for appellants.

Cheney, Jensen & Holman and Carlson & Carlson, for respondents.

FRICK, J.

Appeal from Third District.

The plaintiffs, George E., William H., and Thomas M. Reese, and Thomas M. Reese as administrator of the estate of Brigham Reese, deceased, brought this action against Frank, Elizabeth M., and Frances Qualtrough to recover damages for alleged torts which it is alleged the defendants committed to the injury and damage of the plaintiffs.

The gist of the action, which is set forth in a very lengthy complaint, may be summarized thus: In the first paragraph it is alleged that the plaintiff Brigham Reese was the owner of certain real estate in Salt Lake county, which is specifically described. Paragraphs two and three merely state other matters of inducement respecting the parties. In paragraph four it is alleged that a certain stream of water, naming it, flows through the lands of both the plaintiffs and the defendants, and that the plaintiffs at a certain time had constructed certain fishponds along the stream of water, and that prior to the acts complained of plaintiffs had raised large numbers of fish for market, and had disposed of them at a great profit. In paragraph five it is, in substance, alleged that in the months of September, October, and November, 1909, “and at divers other times, since the said months, said defendants had willfully and intentionally flowed large quantities of waste water through certain ditches, describing them, and had willfully and intentionally changed the course of said ditches and the waters flowing therein at frequent intervals, and that they had caused "large quantities of mud, silt, and debris" to flow into said stream, and that "the said stream flowed and carried into plaintiffs' fishponds mud, silt, rubbish, leaves, and other debris, clogging, injuring, and breaking through plaintiffs' fish screen, and injuring and destroying plaintiffs' fish." In the same paragraph it is also alleged that on or about the 30th day of June, 1910, the defendants willfully and intentionally diverted the waters from the stream aforesaid, and that by reason of certain of their acts, which are described, the said stream "flowed large quantities of mud and debris into plaintiffs' fishponds and into plaintiffs' fish screens, thereby injuring and killing plaintiffs' fish living