93 Cal. 519 | Cal. | 1892
This action was brought to enjoin defendants from diverting the waters of a natural watercourse, and to recover damages for past diversion 'thereof. Judgment was rendered in favor of plaintiffs, and defendants, having made a motion for a new trial, and the court having denied the same, appeal from the order denying said motion. There is no appeal from the judgment.
1. Nearly the whole force of the arguments of appellants’ counsel is directed to the point that the findings do not support the judgment. In their final brief, after having referred to Dedmon v. Moffitt, 89 Cal. 211, they say: “We are not asking here, as was asked there, to reverse the judgment for want of a particular finding, but our contention is, that this judgment should be reversed because it is not supported by the findings made.” But it is definitely settled that the insufficiency of the findings to support the judgment cannot be considered on an appeal from an order denying a new trial. That point can be raised only on an appeal from the judgment. (Brison v. Brison, 90 Cal. 323; In re Doyle, 73 Cal. 564; Martin v. Matfield, 49 Cal. 45.) Counsel for appellants say, among other things, that certain general findings are inconsistent with certain special findings; that therefore the special findings should prevail; and that, upon the special findings, the judgment should have been for appellants. But that is nothing more than saying that the findings do not support the judgment,—a position which, as we have seen, cannot be taken on this appeal. If a court, upon an issue essential to the decision of the case, should make two findings directly contradictory of each other, the point might possibly be made, on an appeal from an
2. There is some contention, apparently not much relied on, that the evidence is insufficient to support some of the findings. There are about six hundred pages of evidence in the printed transcript. Most of it consists of the testimony of witnesses by question and answer, apparently taken bodily from the reporter’s notes. It could hardly be expected that this court would critically examine this mass of matter, which ought to have been condensed to one sixth of its present volume. We have looked through it, however, and have seen no reason for disturbing the findings for want of support in the evidence.
3. It is contended by appellants that the court erred in sustaining objections to certain deeds, bills of sale, and records offered by appellants as tending to prove paper title in them to a certain ditch and water right claimed by them.
It appears from the findings that as early as 1862, plaintiffs’ grantors settled upon lands through which a natural watercourse runs, called Dogtown Creek; and since then plaintiffs and their grantors have continuously used the water of said stream to irrigate said lands, and for general farming and domestic purposes. The said lands were then public lands, and they after-wards commenced to obtain title thereto. They first perfected their title to part of the land, through a United States patent, in 1871, and gradually, through the next few years, perfected their title to the whole. It is not necessary to accurately determine what rights plaintiffs had to the use of the water during the period when they were taking steps to acquire the title of the government, because after they received the first patent in 1871 they had all the rights of riparian proprietors, and the decision of the case would be the same
Dogtown Creek runs in a northerly direction to and over plaintiffs’ land, and has a fork or tributary called West Fork of Dogtown Creek, and also another tributary, farther to the east, called Virginia Creek, both of which empty into the main creek above the land of plaintiffs. In the fall of 1860, an association of miners working mines at Monoville, which is east of and beyond the water-shed of said Dogtown Creek and its said tributaries, built a ditch from said West Fork across said Virginia Creek to said Monoville, and thus conveyed all the water of said West Fork, except about forty inches, to said Monoville, for the purpose of working mines at said latter place. This unincorporated, and apparently unorganized, association, composed of about two hundred persons, was called, as the findings show, the “ New Ditch Company but as early as‘1862 it began to disband, and the members of it began to scatter and go to other localities; but “ various persons and strangers ” continued to use the ditch until some time in 1864. The ditch then fell into disuse and was abandoned, except a small part of it running from said West Fork of Dog-town Creek to a point called “ Outlet,” between said West Fork and said Virginia Creek; the rest of it from 1864 to 1886 — more than twenty years — “ was absolutely abandoned, and no person or persons whatever exercised any ownership over or used the same for any purpose whatever.” From 1864 to 1886 the water either ran directly down the said West Fork and upon plaintiffs’ land, or it was carried during the mining seasons through the remnant of the ditch to said “ Outlet,” and was used “by various persons ” to mine some gravel diggings in the neighborhood, from whence it ran down to and upon plaintiffs’ land. It does not appear that this use of the water at said gravel diggings impaired its value to plaintiffs. They do not complain of it, and such use is not affected by the judgment herein. And during said period from 1864 to 1886 all of said water continuously
Now the defendants sought to connect themselves with the right of said old disbanded association of miners of 1860-62, and for this purpose offered the papers, which the court ruled out. The first was a money judgment in the district court in favor of one Shaw against the “ United Water Ditch Company” for eleven thousand five hundred dollars. The next paper offered was a deed to said Shaw from a constable, purporting to have been made in pursuance of a sale upon an execution issued out of a justice’s court on a money judgment in favor of one Phelps against the “United Water Ditch Company,” nothing having been offered except the deed itself. The next was a deed from Shaw to a grantor of the defendants. The said judgment was rendered, and said two deeds were executed, in 1862 and 1863. The other papers offered were bills of sale dependent for their value upon said deed by Shaw.
There are some apparent objections to the evidence offered, even if it had been material. It is difficult, for instance, to see how a valid judgment could have been obtained against such a body as said “ association of miners.” But as their name was the “New Ditch Company,” how could they, or their property, be affected by a judgment against the “ United Water Ditch Company”? And how could a mere money judgment be evidence of title to real property? As to the constable’s deed, there was no basis for its introduction. But if the offered evidence had been admitted, it would not have changed the aspect of the case at all. The court found that the old ditch and water right by which the water had for a short time been carried beyond the water-shed of Dogtown Creek had been abandoned for more than twenty years next preceding the time when, in 1886-87, the defend
The order appealed from is affirmed.
De Haven, J., and Sharpstein, J. concurred.
Hearing in Bank denied.
