91 Cal. 391 | Cal. | 1891
Action to enjoin defendants from diverting water from plaintiffs’ lands. Judgment for defendants. A new trial was granted; and this appeal is from the order granting a new trial.
The material allegations of the complaint are substantially as follows: That in 1869 the defendants constructed a water-ditch, known as the Rhodes and Fine ditch, conveying water from Tule River, a distance of about five miles, and being of an average width of eight feet on the bottom and one foot deep, and acquired rights to
In their answer the defendants deny all the material allegations of the complaint, except that they constructed the original ditch and continued to own and use it from 1869 until 1876, and they aver that they still own the whole of it and are entitled to the use thereof. They deny that they co-operated or assisted in the construction of any extension of the original ditch, and disclaim any* interest in such extension, which, they say, is improperly called an extension of their ditch, and which, they allege, was constructed by plaintiffs and others for the purpose of taking up and utilizing surplus water which defendants permitted to flow from the lower end of their ditch and there abandoned.
They admit that as a neighborly accommodation they have permitted the water to flow through their ditch to that of the plaintiffs (the alleged extension) whenever they (defendants) had no use for it.
They do not deny the diversion of the water from their own ditch, as alleged in the complaint, but claim they were entitled so to divert it.
The court filed written findings upon all the issues in favor of the defendants, and rendered judgment accordingly.
The plaintiffs moved for a new trial upon the grounds that certain findings of fact are not justified by the evidence, and that errors in law were committed at the trial.
In granting the motion for a new trial, the court rendered an opinion stating the ground upon which the motion was granted. The following is a copy of the opinion as brought here with the record, and certified to be correct by counsel for both parties: “ Plaintiffs’ motion
In view of certain undenied averments in the complaint, and findings of fact which are not excepted to.
Upon this issue the finding of the court is: “ That there never was, either in 1876 or at any time, any contract, agreement, or understanding by or between the then owners of said Rhodes and Fine ditch and said S. E. Dale, A. E. Scruggs, and J. Oattaneo, or either of them, that said ditch should be enlarged or extended, or that in consideration of such enlargement and extension, or for any consideration, said Dale, Scruggs, and Cattaneo, or either of them, should become tenants in common
This finding is not excepted to on any ground.
It follows that unless the order granting a new trial can be justified on some other ground than that upon which it is based by the opinion of the learned judge of the court below, it should be reversed.
It is conceded by counsel for respondents that there was no express agreement by which plaintiffs were to have or to acquire any interest in the ditch or water rights; and that, whether or not their alleged labor on the ditch, with the knowledge and consent of defendants, implied an agreement that they should become tenants in common, etc., is the vital question in the case. On page 3 of this brief, counsel for respondents says: “The first point made for appellants is, that ‘the plaintiffs failed to prove that they had acquired any title to the ditch in controversy. ’ This is the vital question in this case. If the work of enlargement made by plaintiff S. E. Dale and others did not give them an interest in the ditch as now found, then plaintiffs have no interest in it.”
All the findings of fact, except the second, as to which the new trial was granted, are fully justified by the evidence, and sustain the judgment without aid from the second finding.
The issues of fact seem to have been thoroughly tried. The testimony of seventeen witnesses on the part of the plaintiffs, and twelve for the defendants, occupy 250 pages of the transcript; and it seems extremely improbable that a materially different state of facts could be' elicited by a new trial. Certainly, the facts alleged in the complaint could not be disputed by plaintiffs, and there is no exception to the finding that there was no agreement that plaintiffs should have an interest in the ditch or water rights;, and no pretense that there was any such express agreement.
None of the errors in law specified in the bill of exceptions are well taken. The only one. of them that can
After the court had ruled that the agreement could not be proved by parol evidence, plaintiffs’ counsel asked and the court granted them leave to introduce evidence of the labor done by plaintiffs on the ditch, on the condition that they should afterwards connect it with written evidence of the agreement. On this condition, and without any apparent restriction, plaintiffs not only gave evidence of the labor done on the ditch, but of all that was orally said by both parties in connection with that labor, yet failed to introduce or to offer any evidence, parol or written, tending to prove the express agreement alleged in their complaint.
The evidence fails to show the amount or the proportion of the work done by the plaintiffs, or by either of them, but does show that a considerable portion of the work in repairing the ditch was done by persons who are not parties to the action, and who never claimed any interest in the ditch, but who were occasionally per
Counsel for respondents contends that the labor done by them and the defendants in enlarging the ditch destroyed the identity of the original ditch as described in the complaint, and created a new ditch, in which, by virtue of their labor, plaintiffs are entitled to share as tenants in common with defendants in the proportion that their labor bears to the whole labor of construction.
To say nothing of the impracticability of ascertaining on this theory what proportion of the alleged new ditch they are entitled to, the theory itself is inconsistent with the complaint. The allegation in the complaint that plaintiffs should become tenants in common with the defendants in the ditch and water rights by express agreement with the defendants — “ the then owners ” — in consideration of plaintiffs’ labor is irreconcilably inconsistent with the theory that they became such tenants in common by merely assisting in the labor of enlarging the ditch. Their allegation is, in effect, that they acquired such title as they claim by purchase from the defendants, for which purchase their labor was the consideration. They now ignore the purchase theory, and claim title to an undivided portion of the ditch by virtue of having created it by the same labor that is alleged to have been the consideration for their purchase.
Other apparently valid objections might be made to this unpleaded theory; but for the purposes of this appeal it is enough that the theory is inconsistent with plaintiffs’ complaint.
It is further contended for respondents “ that defendants are estopped from denying that plaintiffs have an interest in said ditch and water,” and also that plaintiffs acquired title by adverse user of the water for a period of more than five years.
Conceding that the facts necessary to sustain these points are averred in the complaint, which is doubtful, such facts are negatived by findings of the court which are fully justified by the evidence.
Belcher, 0., and Fitzgerald, C., concurred.
For the reasons given in the foregoing opinion, the order granting a new trial is reversed.