95 Cal. 541 | Cal. | 1892
Lead Opinion
This action was commenced on the first day of April, 1889, to recover eight thousand eight hundred dollars damages from the defendants — seven in number — for the alleged diversion of water from a natural stream — Pine Creek — in Modoc County, during the years 1887 and 1888, to the injury of plaintiff’s riparian and appropriated water rights below the point of diversion; and also to enjoin such diversion pendente lite, and upon the bearing, perpetually.
Judgment passed for defendants, and plaintiff appeals from the judgment on the roll and without a bill of exceptions.
The court found that in the early part of spring the stream affords 3,000 inches of water under a four-inch pressure, but in the dryest part of the year only 1,000 inches; that in June, 1882, the defendants and one J. Thad. Jones constructed a dam across the creek above plaintiff’s riparian lands, and above all the points from which plaintiff diverted water, by which they diverted from the creek 550 inches of water into a ditch constructed by them, through which they conducted that amount of water to certain lateral ditches connected therewith, through which the water in the main ditch
It was further found that plaintiff was in possession of all his riparian lands prior to 1882, and has been ever since; and that he had full notice of the construction of said dam, and of the diversion of 550 inches of water by the defendants and their grantors in June, 1882, and thence until October, 1885, when he purchased the interest of Jones, and during all that time had notice that defendants diverted the water under a claim of right; yet it does not appear that he ever objected to the construction of said dam, or the diversion of the water, until he did so by the commencement of this action.
As conclusions of law, the court found, among other things, that plaintiff is a tenant in common with the defendants in the dam, ditch, and water right; and that, by his participation and assistance in maintaining the dam and diverting the water, he is estopped from maintaining this action.
Counsel for appellant make the point that no estoppel was pleaded by defendants, and therefore the findings of
Conceding that there was no issue as to estoppel, it docs not necessarily follow that the findings of fact from which the court drew the conclusion that plaintiff was estopped were not within other material issues; nor does it follow that those findings do not warrant the general conclusion of law, that plaintiff was not entitled to recover in this action. The facts found necessarily imply that from and after October, 1885, until after all the alleged injurious acts of the defendants had been done, the plaintiff consented to those acts; and consequently was not injured thereby, — volenti non fit injuria. In commenting upon this maxim, Mr. Broom says: “It is a general rule of the English law that no one can maintain an action for a wrong where he has consented to the act which occasions his loss ” (Broom’s Legal Maxims, side p. 265); and section 3515 of our Civil Code is to the same effect, — “ He who consents to an act is not wronged by it.”
Says Judge Cooley: “ Consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to. A man cannot complain of a nuisance the erection of which he concurred in or countenanced. He is not injured by a negligence which is partly chargeable to his own fault. A man may not even complain of the adultery of his wife which he connived at or assented to. ... . But in case of a breach of the peace it is different. The state is wronged by this, and forbids it on public grounds.” (Cooley on Torts, 2d ed., 187; Corwin v. Railroad Co., 13 N. Y. 49; Lyon v. Tallmadge, 1 Johns. Ch. 187.)
It is alleged in the complaint that defendants forcibly and wrongfully diverted all the water from the creek during certain specified months in the years of 1887 and 1888, to the damage of the plaintiff in the sum of eight thousand eight hundred dollars.
The defendants denied that they ever diverted more ' than 550 inches of water, and on this issue the court
As there is nothing in the record tending to show that plaintiff withdrew his consent before the commencement of this action, the averment in the complaint, that defendants threaten and intend to continue the acts complained of, should not be construed to mean that they intend so to continue without his consent; but only that they intended to do as they had done theretofore, as found by the court. Therefore, conceding that plaintiff might have been entitled to an injunction, on the ground of mere threats, without any actual infringe
It is contended, however, that the finding that plaintiff assisted in repairing and maintaining the dam and ditch, and in diverting the water, etc., is inconsistent with another finding (24th), to the effect that “ defend- . ants and their associates ” erected and maintained the • dam and ditch, and diverted their several portions of ■ water upon their respective tracts of land ever since the month of June, 1882.
But viewed in connection with, the finding that J. Thad. Jones was one of the “ associates ” of defendants from June, 1882, until October, 1885, and that, plaintiff succeeded Jones as an associate in October, 1885, the alleged inconsistency does not appear.
If the foregoing views of the case are correct, all other points urged by appellant are immaterial.
As to what may be the rights of the parties independently of plaintiff’s consent to the acts complained of, it is not necessary nor intended to express or intimate an opinion.
I think the judgment is justified by the finding that the acts complained of were done with plaintiff’s consent, and that it should be affirmed on that ground.
Belcher, C., and Haynes, C., concurred.
Sharpstein, J., McFarland, J.
Concurrence Opinion
— I concur in the judgment. The finding of the court below that plaintiff participated with defendants in the maintenance of the dam and diversion of the water of which he complains is a defense to the action. I do not, however, concur in so much of the foregoing opinion as holds that evidence tending to prove such defense was properly admitted under the denial that plaintiff sustained damage by reason of the matters alleged in his complaint. I think that such defense should have been specially set out in the answer. But this appeal is upon the judgment roll without any bill of exceptions, and upon this record the presumption is, that the evidence by which this defense was established was received without objection, and that the case was tried by consent of the parties, as if such defense had been specially alleged. This being so, appellant should not be permitted to urge here for the first time that no such issue was made in the court below. (Horton v. Dominguez, 68 Cal. 642.) The court below should have directed an amendment of the answer so as to conform to the proofs, but the judgment ought not to'be reversed because such formal amendment was not made.
I do not understand that the case of Ortegav. Cordero, 88 Cal. 221, is necessarily opposed to these views. In that case the question was, what effect should be-given to a finding which was inconsistent with a fact admitted by the pleadings, and it was in relation to this that the court said that there could be no presumption that the parties consented to treat admitted facts as in issue; that a judgment which was in conflict with a fact admitted upon the record could not be sustained, and that upon such a record there was no presumption that a party waived the benefit of an admitted fact. The question here is different. The finding which is claimed to he out
Hearing in Bank denied.
Beatty,^ C. J., dissented from the order denying a hearing in Bank.