101 Cal. 32 | Cal. | 1894
This action was brought by plaintiff, who is a lower riparian proprietor on a stream, to restrain the defendant, who is an upper riparian proprietor on the same stream, from diverting water therefrom. Judgment went for defendant, and plaintiff appeals.
The case has been here twice before, 77 Cal. 66; 91 Cal. 146. On the first appeal a judgment in favor of defendant was reversed on account of defective finding; and it was said in the opinion that under the pleadings, as they then stood, evidence of diversions of water by third persons would be admissible only as to the amount of damages (which were waived by plaintiff); and that findings as to the acts of certain Chinamen and others were irrelevant and against the admissions of the answer. Certain principles as to riparian rights were also stated for the guidance of the court on another trial. When the case went down to the trial court defendant asked leave to file a certain amended answer, to which the plaintiff objected; the court allowed it to be filed; and plaintiff excepted—preserving his exception in a bill of exceptions. But on the second trial judgment was rendered for plaintiff; so that the objection to the amended answer was not presented to this court on the second appeal. Upon the second appeal the judgment for plaintiff was reversed, mostly upon points which do not arise on the present appeal. When the case went down the second time plaintiff—in addition to the exception which he had preserved as before stated—moved the court to strike out the said amended answer; and his motion having been denied he again excepted.
The point most elaborately argued by appellant is that the court erred in permitting respondent to file his amended answer.
It appears that the alleged wrongful diversion was made through a small flume into which the water was turned from time to time by temporary obstructions, or dams, across the stream. In the original answer it was averred, among other things, that defendant as a riparian owner, and also by virtue of a prescriptive right,
We cannot say that the court abused its discretion in permitting the amended answer. The rule is that courts will be liberal in allowing an amendment to a pleading when it does not seriously impair the rights of the opposite party—and particularly an amendment to an answer. A defendant can generally set up as many defenses as he may have. Appellant contends that the affidavits upon which the motion to amend was made show that it "was based mainly on a mistake of law made by respondent’s attorney; but, assuming that to be so, still the power of a court to allow an amendment is not limited by the character of the mistake which calls forth its exercise. The general rule that a party cannot be relieved from an ordinary contract which is in its nature final, on account of a mistake of law, does not apply to proceedings in an action at law while it is pending and undetermined. Pleadings are not necessarily final until after judgment. Section 473 of the Code of Civil Procedure provides that the court may allow an amendment to a pleading to correct certain enumerated mistakes or “ a mistake in any other respect,” and “ in other particulars.” The true rule is well stated in Ward v. Clay, 82 Cal. 502. In the case at bar evidence of the lease was given at the first trial; and we cannot see that the amendment before the second trial put plaintiff in a position any different from that which he would have occupied if the amendment had been made before the first trial.
We do not deem it necessary to discuss here the general principle of law which applies to the question whether or not, in any particular case, a landlord is responsible for wrongful acts or nuisances done or created by his tenants. The general rule is, itself, well established; but its application to particular facts is often difficult, and there have been many decisions where the rule was invoked. Sufficient was said on the subject in the opinion of this court on the last appeal, both as to the rule and as to its application to the particular facts in the case at bar. (91 Cal. 146.) It is enough to say here that the evidence is not insufficient to support the findings on this subject above specially stated; and that those findings justify the legal conclusion that respondent was not liable, under the circumstances, for the said diversions of water by his tenants. This being so, the judgment must be affirmed.
Judgment and order affirmed.
De Haven, J., and Fitzgerald, J., concurred.
Hearing in Bank denied.