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that the diversion of water by the defendant from Kings River had not been made continuously, uninterruptedly, or peaceably, for a period of five years prior to the filing of plaintiffs' complaint, and in not finding to the contrary thereof.” “The court erred in its findings of law that the cause of action was not barred by the statute of limitations.” The code provides that “when the notice of the motion designates, as the ground of the motion, the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. When the notice designates, as the ground of the motion, errors in law occurring at the trial, and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely. If no such specifications be made, the statement shall be diregarded on the hearing of the motion.” (Code Civ. Proc., sec. 659, subd. 3.) It is evident that the specifications above noted are quite insufficient to meet the requirements of the code, and they must therefore be disregarded. (Smith v. Christian, 47 Cal. 18; Shepherd v. Jones, 71 Cal. 223.) The other points in the case are fully met and answered by the decision lately rendered in Heilbron v. Fowler Switch Canal Co., 75 Cal. 426. The appeal from the judgment should be dismissed, and, on the authority of the last-named case, the order denying a new trial should be affirmed.
Foote, C., concurred.
The Court.—For the reasons given in the foregoing opinion, the appeal from the judgment is dismissed, and the order denying a new trial is affirmed.
[No. 11963. In Bank.-April 28, 1888.] AUGUST HEILIBRON ET AL., RESPONDENTs, v. KINGS RIVER AND FRESNO CANAL COMPANY, APPELLANT.
PRACTICE—AMENDMENT OF ANSWER—DISCRETION.—It is not an abuse of discretion for the trial court to refuse to allow an amended answer to be filed, when the matters set out therein are not substantially different from those already pleaded in the answer on file. ID.—FINDINGs—INSUFFICIENCY or EVIDENCE—SPECIFICATION of PARTICULARs.-The sufficiency of the evidence to sustain a finding will not be reviewed unless the statement on motion for a new trial contains a specification of the particulars wherein the evidence is claimed to be insufficient. TORT-AFFIRMATIVE RELIEF to DEFENDANT—CRoss-complainT.—In an action sounding in tort, the defendant cannot obtain affirmative relief by way of cross-complaint. FINDINGs—Conflict of Evide Noe—STATUTE of LIMITATIONs.—Where the evidence is conflicting, a finding against the plea of the statute of limitations will not be held unsupported by the evidence. LANDLORD AND TENANT—INJURY to LEAshilolo—ACTION BY TENANT.A tenant for years in the possession of the leased property may maintain an action for any injury which interferes with his possession or the use and enjoyment of the property. RIPARIAN RIGHTs—UNLAwFUL DIVERSION.—LIABILITY of DIVERTOR.— An unlawful divertor of the waters of a natural stream cannot escape from liability to a riparian proprietor for his wrongful acts, by showing that other persons were making similar unlawful diversions. FINDINGs.-The findings held to cover all the material issues raised by the pleadings.
APPEAL from a judgment of the Superior Court of Tulare County, and from an order refusing a new trial.
The action was brought to recover damages caused to plaintiffs' lands by reason of the acts of the defendant in diverting the waters of a natural watercourse called Kings River, and also to obtain a perpetual injunction restraining defendant from diverting the water, or in any manner obstructing or interfering with its free flow in the channel of the stream to plaintiffs' lands.
The amended complaint shows that plaintiffs are, and they and their grantors for more than five years prior to the filing of the complaint had been, the owners and in possession of the rancho Laguna de Tache, containing fortyeight thousand acres of land, and other lands adjacent thereto, described by legal subdivisions, and that said rancho was granted to Manuel Castro by the government of Mexico in the year 1846, and that a patent for the same was duly issued by the government of the United States to the predecessors and grantors of plaintiffs in the year 1866; that plaintiffs are the owners of a large number of horned cattle and other live-stock, which they have kept and maintained, and do now keep and maintain, on said lands; and that said cattle and live-stock are dependent upon the grass and herbage which grow upon said lands for food, support, and maintenance; that said lands are used as a stock range, and are of great value to plaintiffs for that purpose. A certain large natural watercourse called Kings River from time immemorial has flowed, and but for the wrongful acts of defendant in the amended complaint specified would still continue to flow, by and through said lands. There is a certain natural branch of said Kings River which was formerly known as Arroyo de Holancos, but now called Cole Slough, which now receives, and always has received, its supply of water from said Kings River. The channel of Cole Slough is located wholly within the boundaries of said lands. Cole Slough from time immemorial has flowed, and but for the wrongful acts of the defendant would still continue to flow, through said lands. Kings River and Cole Slough have heretofore furnished, and but for the wrongful acts of defendant would still furnish, the cattle and live-stock of plaintiffs with water to drink, and but for the wrongful acts of defendant the waters of Cole Slough and Kings River would overflow, irrigate, seep through, wet, and moisten said lands, and greatly increase the fertility thereof, and cause said lands to produce a large and valuable quantity of grass and herbage, upon which plaintiffs' cattle would feed and fatten. Defendant is a corporation, and prior to the day of September, 1881, it dug and constructed a large ditch or canal leading out of the channel of Kings River at a point near Hazelton's house, about twenty-seven miles above and distant from the point on the channel of said Kings River at which said Cole Slough receives its supply of water, and on the day of September, 1881, defendant, without the consent of plaintiffs, or their grantors, or either of them, Constructed a large dam in the bed and channel of said Kings River, immediately below the place where said ditch or canal leads out of said Kings River, and by means of said dam and ditch, said defendant, at various times since said date last aforesaid, has diverted, and still does divert, from the channel of said Kings River a large quantity of water, which of right ought to have flowed, and but for the wrongful acts of said defendant would have flowed, down to and through plaintiffs' said lands, and would have overflowed, irrigated, seeped through, and moistened said lands, and increased their fertility, and furnished water . for plaintiffs' cattle and live-stock to drink. It is further alleged that the diversion of water from Kings River by defendant has deprived plaintiffs' lands of the benefit of the flow of said water, has caused said lands to fail to produce their usual and accustomed crops of grass, and has deprived, and now deprives, plaintiffs' cattle and live-stock of water to drink; that the diversion of water from Kings River by defendant, during the one year immediately preceding the filing of plaintiffs' original complaint, has caused plaintiffs great loss and damage, in that said lands, by reason of the diversion of said water by defendant, have failed to produce their usual and accustomed crop of grass and herbage, and such crop has become wholly lost to plaintiffs, to their damage in the sum of twenty-five thousand dollars; and during the said one year plaintiffs' cattle and livestock have perished and died for want of said water to
drink, and for lack of said grass to eas, to the damage of plaintiffs in the sum of ten thousand dollars. It is further alleged that the defendant has threatened, and still does threaten, to continue to divert the water from said Kings River by means of said ditch and dam, and unless restrained by a decree of the court, defendant will continue to divert and turn away from the channel of the river the waters thereof, to such an extent as to completely drain said channel, and finally change the course of said stream, and thereby deprive plaintiffs' lands of the flow of said water, and plaintiffs' cattle and live-stock will be deprived of water to drink, whereby plaintiffs will suffer great and irreparable loss and injury, and that such loss and injury will be continuous; and compensation therefor cannot be adequately obtained in an action at law for damages, etc. The prayer is for thirty-five thousand dollars damages, and a decree adjudging said dam to be a nuisance, and that the defendant be ordered to remove and abate the same, and that the court issue its permanent injunction restraining defendant from maintaining any dam or obstruction in the channel of said river, or diverting any of the waters thereof. The defendant filed a demurrer to the amended coinplaint, which was overruled, and thereafter defendant filed what it denominated “an answer to the amended complaint and cross-complaint.” A demurrer was interposed to the so-called cross-complaint, which was sustained by the court. The answer and cross-complaint set up an alleged appropriation of the waters of the stream, and the statute of limitations. The cause was tried by the court sitting without a jury; written findings of fact were filed, upon which judgment was entered for plaintiffs. Defendant’s motion for a new trial was denied, and thereafter it appealed from the final judgment, and from the order denying its motion for a new trial. The further facts are stated in the opinion of the court.