Hayden v. Consolidated Mining & Dredging Co.

Respondent was the owner of a tract of farming land in Siskiyou county, appurtenant to which was a ditch known as the "Alger Ditch," used for conveying water from Scott river to and upon said land for purposes of irrigation. The defendant constructed a dam in the channel of the river near the head of this ditch, thereby causing the waters of the stream to flow against one of its banks and into the head of the ditch. As a result, about one-half mile of the ditch was washed away, necessitating the construction of a flume for this entire distance. This action was brought to recover $5,000 damages, thereby sustained. The jury found for plaintiff, and assessed the damages at the sum of $550. Judgment was entered accordingly, and the defendant appeals from the judgment and from an order denying his motion for a new trial.

At the time the ditch was washed away, one Oltman was in possession of the land and ditch, under a lease which included an option to purchase the property. This lease contained a covenant binding the lessee to keep the ditch open and in repair at his sole expense and without charge to respondent. The court, after repeatedly instructing the jury that the plaintiff was only entitled to recover damages for permanent injury to "her inheritance" or "reversionary interest in the property," and that the lessee would be entitled "to recover against the defendant in respect to the value of his possessory interest and unexpired term in the premises," continuing, said: "But if you further find from the evidence that the lease to Charles Oltman contains a covenant to repair the Alger ditch, then *Page 138 such covenant requires that the lessee, Charles Oltman, shall keep the ditch in as good repair as when he received it under his lease; and if destroyed by the defendant, he, the said Charles Oltman, would be required to replace and rebuild the the portion or portions of said ditch so destroyed. And he, the said Charles Oltman, would be entitled to recover from the defendant the cost of rebuilding and replacing the portion or portions of said ditch, if any, so destroyed by defendant." In the same connection and immediately following said instruction, which was numbered 9, the court further instructed the jury as follows: "If you find from the evidence in this case that the damages alleged in the complaint were in fact inflicted by the defendant, and that any portion of the said ditch was so permanently injured and destroyed as that it could not be rebuilt or replaced in the manner in which it originally existed, then the lessee would not be bound, under his covenant, to repair such permanent injuries, and the plaintiff may recover herein for such damages." The appellant does not assail the correctness of the whole or any portion of the charge of the court, but relies solely on the point that the jury must have ignored or refused to follow instruction No. 9 above quoted. It is argued that, as the lease contains a covenant requiring the lessee to keep the ditch in repair, this instruction absolutely precluded a recovery by plaintiff, for or on account of any injury to such ditch occurring during the continuance of the lease. Respondent answers this argument by saying that the instruction on this branch of the case must be read and construed together, and that if this course is pursued, the verdict cannot be held violative of the charge of the court, or of the instruction in question. Appellant replies by reiterating the argument first advanced, and adding that there is such an irreconcilable conflict between the two instructions above quoted that one cannot be followed without ignoring the other. It is well settled that instructions given by the court must be read together as a whole, and are sufficient if, when so read, they appear to cover the whole case, and state correctly the law applicable thereto. (Nichol v. Laumeister, 102 Cal. 661, [36 P. 925]; Ellis v.Tone, 58 Cal. 297; People v. Kennedy, 55 Cal. 202; Feliz v.Feliz, 105 Cal. 6, [38 P. 521]; Monaghan v. Rolling Mill Co.,81 Cal. 193, 194, [22 P. 590].)