McCarthy v. Standish

The plaintiff commenced an action against the defendants to enjoin the defendants from obstructing certain alleged watercourses. The defendants answered by denying many allegations and at the same time filed a cross-complaint asking that the plaintiff be enjoined from cutting and maintaining certain ditches and discharging across the lands of the defendants excess waters. A trial was had before the trial court sitting without a jury. On certain issues the trial court found for the plaintiff and on some issues it found for the defendants, but the defendants, being dissatisfied with the judgment, have appealed.

The plaintiff and defendants owned adjoining farms located northeast of San Jose. The plaintiff's farm is on the south side and is the higher ground, and the farm of the defendants is on the north side and is the lower ground. All of the lands are crossed by four watercourses, which parallel each other and extend from the southeast to the northwest. The first one we shall call the slough AB, which runs under the bridge which the engineer, Mr. Hermann, adopted as the bench for his survey; the second one we shall call CD, and is the watercourse which was by the parties on the trial spoken of as number one; the third one we shall call EF, and is the watercourse the parties spoke of on the trial as number two; and the fourth one was by the parties called and is generally known as Coyote River.

In pleading her case the plaintiff asserted her alleged wrongs in four counts. The first two counts were addressed to the watercourse CD, and the last two counts were addressed to the watercourse EF. In the first count she alleged that the watercourse CD was a natural depression which from time immemorial had drained the rain and flood waters from plaintiff's land. In the second count she alleged that the watercourse CD was an artificial ditch which had drained said waters for twenty years last past, and that her use had been peaceable, etc. Her allegations differed in the same respect regarding the watercourse EF. After denying many of plaintiff's material allegations, the defendants pleaded affirmative allegations in their answer, and repeated in a cross-complaint as follows: "That in the year 1918, without the consent of defendants or either of *Page 459 them the plaintiff constructed a large ditch of a depth of over four and one-half feet and of a width in the bottom of over two feet and with gradually sloping sides to the top of said ditch so that the same is over seven feet wide at the top thereof. That said ditch so constructed runs generally from defendants' southerly line in the southeasterly direction over plaintiff's lands for a distance of one thousand feet and then turns in an easterly direction on plaintiff's lands a distance of over twelve hundred feet. That plaintiff constructed on the westerly side of the portion of said ditch running northerly and southerly an embankment of earth of over three feet in height and on the northerly side of the portion of said ditch running easterly an embankment of earth of over three feet in height. That without the consent of defendants or either of them the said plaintiff at the time she constructed said ditch, wrongfully and without right continued said ditch in the northerly direction over the land of defendants for a distance of over three hundred feet."