120 Cal. 311 | Cal. | 1898
After consideration of this cause in Bank we are satisfied with the conclusion reached and the opinion delivered in Department. There is no appeal from the judgment; and, as to the questions which could be raised on the appeal from the order denying a motion for a new trial, we do not deem it necessary to add anything to the opinion above referred to. Indeed, the determinative issues in the case were issues of fact which were decided by the court below upon conflicting evidence which clearly warranted the findings which the court made.
For the reasons given in the said former opinion the order appealed from is affirmed.
Beatty, C. J., did not participate in the foregoing.
The following is the opinion above referred to, rendered in Department One, June 25, 1897:
This is an action to determine conflicting claims to water. The action was commenced April 12, 1892, by the plaintiffs, for themselves, and nineteen others interested with them, to obtain an injunction restraining the defendant corporation from diverting any of the waters of the ICaweah river until after plaintiffs’ ditch, known as the Watson ditch, is supplied with twenty cubic feet of water per second.
The case was tried and the findings were very full, covering all the issues raised by the pleadings. Among other things, the court found that the plaintiffs were the owners of the Watson ditch and had a right to divert through the same from Mill creek nineteen and sixty-three hundredths cubic feet of water per second, which right was prior and superior to the right of defendant to divert through its ditch any water from the ICaweah river or Mill creek. Judgment.was accordingly entered perpetually enjoining defendant from diverting any water from the
. A motion for new trial was made upon a bill of exceptions and denied, and from that order defendant appealed. The motion for new trial was based upon the following grounds: 1. Insufficiency of the evidence to justify the findings and decision of the court; 2. Errors in law occurring at the trial and excepted to by defendant; 3. That the decision was against law.
Appellant attacks the findings and earnestly contends that, as to ten different and material matters contained in them, they were not justified by the evidence.
During the trial fifteen witnesses were called and examined on behalf of the plaintiffs, and twenty-three on behalf of the defendant, and the evidence presented in a condensed form in the bill of exceptions covers eight hundred and eighty-six pages of the printed transcript.
Upon nearly every disputed question in the case the evidence was conflicting, and to follow up and discuss all the points made would obviously require a very lengthy opinion and subserve no useful purpose. We have carefully gone over and examined the evidence, and under the circumstances deem it enough to say that in our judgment it was quite sufficient to justify each of the findings objected to.
Appellant also contends that the court committed twenty-one different errors in law in its rulings upon the admission or rejection of evidence, each of which was prejudicial to its side of the case and calls for a reversal.
The first ruling complained of was the admission in evidence of a deed which purported to have been executed by O. J. Bid-dings to J. 0. Blakely and others. The deed named twenty-nine grantees, to each of whom it conveyed a certain fractional interest in the property described, leaving still a fractional interest in the grantor, who was one of the plaintiffs, and it was Acknowledged by the grantor before one of the grantees, who was a notary public. The property was described as: “That certain water ditch situate in the county of Tulare, state of California, known as the Watson ditch, which ditch runs through a
The defendant objected to the introduction of the deed in evidence, on the ground “that the same is irrelevant and immaterial to any of the issues in the case, and because the instrument is incompetent to prove any fact in issue; it cannot be ascertained therefrom what property is sought to be conveyed by the instrument.”
It appears that the same property had been conveyed to said Biddings by Emily P. 'Watson, the widow and only heir of Wiley Watson, deceased, and her deed had been introduced in evidence without objection.
It is argued that the deed was inadmissible because: 1. There was no evidence that it was executed by Biddings other than the certificate of acknowledgment attached thereto, and, as the acknowledgment was taken by one of the grantees, it was wholly void and insufficient to prove the execution; and 2. There was no evidence to identify the property described in the deed as being the same property described in the complaint.
Neither of these grounds of objection can be sustained. It is true the grantee in a deed cannot take and certify the acknowledgment of his grantor, and if he does so the certificate as to him is void. But where, as here, there are several grantees, each taking a separate and defined interest, the deed should be treated as if made separately to each of such grantees, and we see no reason why, and have discovered no authority to the contrary, the acknowledgment should not be held good as to all of them except the party taking it. There would be just as good reason
“Every instrument conveying or affecting real property, acknowledged or proved and certified as provided in the Civil Code, majr, together with the certificate of acknowledgment or proof, he read in evidence in an action or proceeding without further proof” (Code Civ. Proc., sec. 1951); and “a grant duly executed is presumed to have been delivered at its date.” (Civ. Code, sec. 1055.)
The ditch referred to is described in both the complaint and deed as that certain water ditch in Tulare county known as-the Watson ditch, and the general particulars as to its head and eouise are substantially the same. There was abundant evidence that it was generally known and spoken of as the “Watson ditch/' and no evidence that there was any other ditch in the county having the same name. When property has a descriptive name it may he conveyed by that name, and defects in other parts of the description may he disregarded. (Civ. Code, sec. 1092; Haley v. Amestoy, 44 Cal. 132; Martin v. Lloyd, 94 Cal. 195.) It must he held, therefore, that the property described in the deed was sufficiently identified as being the same property described in the complaint.
The other rulings complained of are so numerous that we have neither time nor space to enter upon a full discussion of them. We have carefully read and considered the very elaborate and able briefs of counsel upon both sides, and after doing so feel constrained to say simply that we ¿o^naL.find in the rulings any error prejudicial to the eern'piainant.
The point that -tile decision was against law is based upon the theory that the findings in regard to the bar of the statute oí limitations were inconsistent with and contradictory to certain other findings in regard to the location, construction, and use of defendant’s ditch. We see no such inconsistency. All the findings must he read and considered together, and when so-read they seem to he in entire harmony and to justify the conclusions reached by the court.
It follows that the order appealed from must he affirmed; and it is so ordered.
