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H. S. Dizon, and Flournoy do Mhoon, for Appellant.
Brown & Daggett, for Respondents.

The Court.—Many of the questions involved in this appeal have recently been determined adversely to the contentions of appellate herein. It is therefore unnecessary to notice them further. (Heilbron v. Fowler Switch Canal Co., 75 Cal. 426; Heilbron v. Last Chance Water Ditch Co., 75 Cal. 117; Heilbron v. Centerville and Kingsburg Irrigation Ditch Co., ante, p. 8.) 1. The defendant’s motion for leave to file an amended answer was addressed to the sound discretion of the court, and it appears from the affidavit filed in support of the motion that the matters set out in the amended answer were not substantially different from those which had already been pleaded in the answer on file. The court denied the motion, on the ground “that said matters of amendment are sufficiently pleaded in the original answer to the amended complaint.” We think, therefore, that the court did not abuse its discretion in refusing to allow it to be filed. The defendant seems to have been given the benefit of the matters alleged in his original answer and proposed amendments. 2. The demurrer to the cross-complaint—so called— was properly sustained. The cross-complaint contained nothing which had not already been set out in the answer filed. Furthermore, the action is one for tort, and no af. firmative relief could be granted. (McDougall v. Maguire, 35 Cal. 274.) 3. No specifications of the insufficiency of the evidence to support the first, second, third, fourth, fifth, or sixth finding of fact are made in the statement on motion for a new trial. The facts therein stated, therefore, cannot be controverted. 4. The findings of the court upon the question of adverse use are against the defendant on every element necessary to a title by prescription, and are, we think, supported by the evidence. The question is not whether this court would, upon the same evidence, find the facts as they are found by the court below. It is sufficient to say that there is a substantial conflict. There is nothing to show that Clark or his tenants had knowledge or notice of the diversion of water through defendant's ditch. The most that can be said is, that the evidence, taking into consideration all presumptions, is conflicting upon that question. Diversion of water by the defendant took place at a point nearly thirty miles above the lands of plaintiffs’ ranch, on the land of a riparian proprietor. It was not incumbent upon Clark or his tenants to take notice of what was going on at that distance above their property, to ascertain whether any one was diverting water from the channel of the river. There is evidence in the record tending to show that the diversion of water from Kings River was a matter of motoriety in the vicinity of plaintiffs’ ranch prior to August, 1877, but it is confined to diversions made by other ditches than that of the defendant. There was also evidence tending to show that the diversion of water by the defendant had not been continuous and uninterrupted for five years before the commencement of this action. The court found such to be the fact. Upon this topic there was also a substantial conflict in the evidence. 5. The findings of the court are not outside of the issue upon the question of ownership. The plaintiffs are tenants, and not owners in fee; but they have the right to the exclusive possession and use of the property and all its appurtenances, and have the right to maintain an action for any injury which interferes with their possession or the use and enjoyment of the property. In Luz v. Haggin, 69 Cal. 436, it was said: “When water is diverted from land an injury is done to the possession. Ordinarily it is sufficient if the plaintiff shows that he has possession against a mere wrong-doer. . . . . The plaintiff in such cases is not bound to prove the same title as he alleges, for the disturbance is the gist of the action.” 6. We see no error in the construction given to the patent by the court below with respect to the boundary lines of the ranch. We think, under the description given in the patent, Kings River is one of the boundaries of the lands described in the complaint. 7. There was evidence to sustain the findings of the court with respect to the amount of damages sustained by plaintiffs. The court evidently believed from the evidence before it that the amount of water diverted by the defendant, if it had been permitted to flow in the channel of the river, would have furnished the plaintiffs' cattle with sufficient water to drink, and that plaintiffs' stock died by reason of the diversion of the water by defendant. The court excluded evidence offered on behalf of defendant to show that other parties were diverting water at different points on the river above the ranch of the plaintiffs. In this we think the defendant was not prejudiced. It does not appear whether the diversions referred to were lawful or unlawful, -with or without the consent of the plaintiff. If the acts of the owners of other ditches were joined with the acts of the defendant, the defendant cannot shield itself with evidence of such other diversions. 8. We think that the findings cover all the material issues raised by the pleadings. The court found, upon the questions of ownership of plaintiffs and their predecessors, their possession, and the use of the range for stock purposes; that Kings River flows through the lands; that Cole Slough is a natural watercourse, and a branch of Kings River; that plaintiffs have been damaged by the defendant's diversion of the waters therefrom ; and that the cause of action is not barred by the statute of limitations. These are

all the material matters in issue. LXXVI. CAL-2

9. We see no errors in the rulings of the court in admitting or excluding evidence which operate to the prejudice of defendant's substantial rights. Some of the rulings respecting the notoriety of the diversions and the means of knowledge possessed by the plaintiffs appear at first sight to have been erroneous, but an examination of all the testimony shows that they were made upon the ground that the evidence of notoriety and knowledge was incompetent, because it did not relate to diversions made by the defendant, but to diversions of water from Kings River generally, and at a point many miles above the lands of the plaintiffs. The only purpose which could have been subserved by the evidence was to show that the defendant's diversion of water by means of its ditch was not clandes

Judgment and order affirmed.

Rehearing denied.

[No. 9934. In Bank.-April 28, 1888.] CITY AND COUNTY OF SAN FRANCISCO, APPELLANT, v. SAMUEL W. HOLLADAY ET AL., RESPONAPPEAL from a judgment of the Superior Court of the city and county of San Francisco refusing a new trial.


SAN FRANCISCO-T.AFAYETTE PARK–T)EDICATION TO PUBLIC USE—ACT OF JULY 1. 1864—JUDGMENT AS BAR.—The action was brought by the city and county of San Francisco to recover the possession of certain land, forming part of what is known as Lafayette Park. The plaintiff claimed that the land had been dedicated as a public square, and that it held the legal title in trust for such purpose, under the act of Congress of July 1, 1864, and the act of the legislature of March 11, 1858. The defendants pleaded in bar of the action a judgment rendered in favor of Holladay, in an action brought by him against the city and county, on the 17th of December, 1864, to quiet his title, in which it was decided that the land never had been dedicated as a park, and that the city and county had no title thereto. Held, that the action having been brought subsequent to the passage of the act of July 1, 1864, the judgment rendered therein was a bar to the present action. ID.—QUIETING TITLE AGAINST CITY AND COUNTY.-Under the provisions of the consolidation act of 1850, the city and county of San Francisco could properly be made a party defendant in an action to quiet

title at the instance of a private person.

The action was brought to recover possession of certain land in the city and county of San Francisco, forming part of Lafayette Park. The plaintiff claimed to hold the legal title to the land in trust for the people, under the act of Congress of July 1, 1864, and the act of the legislature of March 11, 1868. The defendants claimed to be entitled to the land, under the provisions of the Van Ness Ordinance, and pleaded certain judgments in bar of the action. The provisions of the ordinance under which the defendants claimed title are set out at length in the case of Hoadley v. San Francisco, 50 Cal. 266. Judgment was rendered in favor of the defendants. The appeal was taken from an order refusing the plaintiff a new trial. The further facts are stated in the opinion of the court.

William Matthews, Craig & Meredith, and John L. Love, for Appellant.

The judgment in Holladay v. San Francisco is not a bar, as the action was unauthorized. (Sharp v. Contra Costa County, 34 Cal. 290; People v. Doe, 36 Cal. 220; Bramham v. San Jose, 24 Cal. 585; Leet v. Rider, 48 Cal. 623; Polack v. San Francisco Orphan Asylum, 48 Cal. 490; Meriwether v. Garrett, 102 U. S. 511; Carr v. United States, 98 U. S. 433; King v. Lagrange, 61 Cal. 221; United States v. Lee, 106 U. S. 196.)

S. W. & E. B. Holladay, R. C. Harrison, W. C. Belcher, B. B. Mastick, and R. H. Lloyd, for Respondents.

The judgment in Holladay v. San Francisco is a bar to the present action. (Outram v. Morewood, 3 East, 354; Caperton v. Schmidt, 26 Cal. 513; Miles v. Caldwell, 2 Wall. 39; Henderson v. Henderson, 3 Hare, 100; Cromwell v. Countu of Sac. 94 U. S. 353.) i

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