(DOWNLOAD) "Peck v. Bersanti Et Al." by Supreme Court of Montana # eBook PDF Kindle ePub Free
eBook details
- Title: Peck v. Bersanti Et Al.
- Author : Supreme Court of Montana
- Release Date : January 27, 1935
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 57 KB
Description
Water Rights ? Appeal and Error ? Motion to Dismiss Appeal on Ground That Appellant Estopped from Appealing by Having Accepted Fruits of Judgment ? Exception to Rule. Appeal and Error ? Exception to Rule That One cannot Accept Fruits of Judgment and at Same Time Appeal Therefrom. 1. The general rule that the right to accept the fruits of a judgment and at the same time to prosecute an appeal therefrom are inconsistent and that the election of one necessarily excludes the enjoyment of the other, is subject to the exception that where the reversal of a judgment cannot possibly affect the appellants right to the benefit accepted under the judgment, he may appeal though he secured such benefit. Water Rights ? Circumstances in Which Successful Party not Estopped from Appealing from Judgment by Procuring Appointment of Water Commissioner to Distribute Water Under Decree. 2. Held, under the above exception to the general rule relating to estoppel to prosecute an appeal by acceptance of benefits flowing from a judgment, that where, after plaintiff in a water right suit had been adjudged to be the owner of the first two rights on a stream, the fact that she secured the appointment of a water commissioner to enforce the provisions of the decree in order to save her crops pending disposition of the appeal prosecuted by other claimants, did not deprive her of the right to appeal from the decree in an effort to obtain an increase of the amount of her appropriation as fixed therein; hence motion to dismiss her appeal denied. (Richli v. Missoula Trust &; Savings Bank, 54 Mont. 127, denying right of appeal under like circumstances, overruled.) - Page 7