Cox v. Odell

ALLEN, J.

Appeal from an order denying defendant’s motion for a new trial. The record discloses an attempt at appeal from the judgment, but inasmuch as the same was not perfected until after the lapse of one year from the rendition of judgment, the same is ineffectual and must be dismissed. Entertaining the views hereafter expressed, we mav disregard the motion to dismiss the appeal from the order

[684]

The only points in the record in this case here presented are that the evidence is not sufficient to justify the findings, and that errors of law warranting reversal of the order occurred at the trial.

As to the first point, while there is a conflict in many respects, there is evidence sufficient to support the findings. The findings and the evidence develop that the defendant’s land adjoins the land of plaintiff on the east and is of a higher elevation than the land of plaintiff, and the water coming to said lands during rains flowed naturally westward in no definite channel, but widely and evenly diffused over the whole surface and doing no damage to plaintiff’s land. The defendant, along his west line, being the dividing-line between the lands of plaintiff and defendant, constructed an embankment for use in the irrigating season, by which he could accumulate and retain the surplus irrigating water the better to utilize it in the irrigation of the trees growing upon the lower part of his premises. This embankment was permitted to remain during the entire irrigating season, and until, from heavy rains in November, 1902, large bodies of water fell upon defendant’s lands and the lands above; that by reason of such embankment, the waters gathered upon the lands of defendant beyond the capacity of said embankment to hold, and the embankment broke away and the waters in separate channels were thrown upon plaintiff’s land, tearing deep gullies therein, carrying off large bodies of soil and, in addition, certain fertilizers theretofore placed thereon. The court further finds that good husbandry did not require that said embankment be maintained; that said waters so accumulating were not the result of unprecedented storm, nor were the said rains of November, 1902, of an unusual character.

During the progress of the trial the court permitted the plaintiff to state his opinion as to whether such water would have been carried off had an outlet been made in the south end of the embankment. Assuming the objection of defendant to this evidence as well taken, and the opinion unwarranted, yet an examination of the whole answer shows that it contained a statement of the physical conditions surrounding the premises, upon which such opinion was based. The answer relieved itself from the force of the objection.