Alexander v. Oklahoma City

APPEAL AND ERROR — Refusal of New Trial — Waiver of Errors. Failure to except to the overruling of a motion for a new trial is a waiver of error as to such ruling, and all alleged errors of law occurring at the trial for which a new trial might be granted. (Syllabus by the Court.)

Error■ from District Court, OMahoma County; B. F. Burwell, Judge. Action by John S. Alexander and others against the city of Oklahoma City. Judgment for defendant, and plaintiffs bring error. On February 28, 1903, J. S. Alexander, ’W. M. Smith, C. J. Bowman, Julia Dunham, and Pearl Dunham, plaintiffs in error, plaintiffs below, sued the city of Oklahoma City, territory of Oklahoma, defendant in error, defendant below, in the district court of Oklahoma -county, and in their petition alleged themselves to be the legal and equitable owners of lots 9 and IQ in section 4, township 11 north, of range 3 W., I. M., in said county; that the defendant is a municipal corporation organized under the laws of the territory of Oklahoma; that said land lies contiguous to certain land owned by the defendant, and is a part of the same quarter section; that the north Canadian river running east and west divides the tracts, that the land of the city lies upon the north bank, and plaintiffs’ land upon the south bank, of said river; that defendant had unlawfully built a dam across said river, which extends from north to south across said river, and joined if to said land belonging to plaintiffs near the northeast corner thereof; thal defendant, by recently raising said dam on the south side of said river to a height of about 3 feet, and by erecting a breakwater some 1,500 feet upstream, and some 40 feet along tbe nolth bank of its land, so changed the current of said river as to throw it against the south bank of said river and overflow some 30 acres of plaintiffs’ land, and by so erecting said dam caused the water to be backed up and forced over plaintiffs’ land some 3 to 5 feet deeper than it otherwise would have been during the spring of 1903 and 1904, to their damage $4,000, for which they pray judgment, and for the abatement of the same as a nuisance, and that the city be perpetually enjoined and restrained from maintaining said dam and breakwater. After demurrer thereto filed and overruled, defendant on October 3, 1903, filed answer, in effect, a general denial except as to its corporate existence and that plaintiffs were owners of the land described in their petition. On April 14, 1905, there was trial to a jury, and special findings and a general Verdict in favor of defendant, upon which the court, rendered judgment for defendant and against plaintiffs, taxing them with the costs, from which said judgment plaintiffs appealed and prosecuted said case by petition in error and case-made to the Supreme Court of the territory of Oklahoma, and the same is now before us for review' as successor of that court.