McRae v. Blakeley

BUCKLES, J.

This action was brought to recover damages against the defendants for constructing a ditch across certain lands belonging to plaintiff and to secure a perpetual injunction restraining defendant from maintaining, using, enlarging, or turning into, running, carrying or conducting water through said ditch and also for general relief. The

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answer denied all the allegations of the complaint and set up leave of plaintiff to construct said ditch. At the trial the plaintiff called a civil engineer, by whom he proved the existence of a ditch on plaintiff’s land and its dimensions and that it was from one hundred and ten to one hundred and twenty-two feet wide and from four to five feet deep. Defendant then admitted that he, Frank Blakeley, built the ditch across plaintiff’s land and admitted that plaintiff was the owner of the land across which the said ditch was made. This was all the testimony and both parties rested. Judgment was for plaintiff that defendant fill up said ditch and a mandatory injunction granted. The appeal is from the judgment.

The question to be determined is: Does the evidence justify the findings? The complaint alleges that the defendant “without any right or claim of right, willfully, wrongfully and unlawfully and against the will and wish of plaintiff, and with force and arms and during plaintiff’s absence from the premises broke and entered the said lands of plaintiff and trod down and destroyed the crops growing thereon, and dug up and excavated, and removed the soil and earth therefrom, and dug a deep ditch or canal through and across said lands ... to the plaintiff’s damage. ...” This the answer specifically denies and by the fifth paragraph alleges that a certain canal or ditch was made across the said lands of plaintiff with the consent of the plaintiff, and that the same is now, and has been, of great value to plaintiff, etc. The court found in the language of the complaint as to the construction of the ditch, and appellant claims that the evidence does not justify such finding. We think that the ownership of the land and the construction of the ditch being admitted the possession in plaintiff is presumed, as is also the entry of defendant without right; and no evidence on the question of damage being presented by plaintiff, the plaintiff established a

prima facie