Beatty v. Clark Colony Water Co.

RICHARDS, J.

This is an appeal on behalf of the plaintiffs from that portion of a judgment which, while directing the issuance of a writ of mandate in their favor, declines to award the plaintiffs damages accruing by reason of the refusal of the defendant to do the acts which the writ is issued to compel.

In the case of

Margaret Jane Beatty

v.

Clark Colony Water Co.

(No. 1701),

ante,

p. 745, [153 Pac. 989], this day decided, this court has affirmed that portion of said judgment directing the issuance of the writ of mandate; and in so doing has dealt generally with the facts of the case. In addition to the facts set forth in the opinion of the court in that case, it may be stated that the practically undisputed evidence in the case discloses that if the plaintiffs were entitled to a writ of mandate, compelling the delivery of water for irrigating purposes upon their land, they were also entitled to damages as a result of the failure, refusal and neglect of the defendant to deliver such water during an entire irrigating season after a seasonable and proper demand for the same, and hence that the trial court was in error in declining to award damages in

[752]

some amount to the plaintiffs after a finding in their favor upon the main issues in the case.

It follows that that portion of said judgment from which the plaintiffs have appealed should be reversed, with instructions to the trial court to try anew the issue as to damages. And it is so ordered.

Lennon, P. J., and Kerrigan, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on December 9, 1915, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 6, 1916.