East Riverside Etc. Dist. v. Holcomb

McFARLAND, J.

—This is an appeal by plaintiff from a judgment in favor of defendants, and from an order denying his motion for a new trial. The cross-complaint of certain persons who may he designated as Fox and others, and who were brought in as defendants against the objection of plaintiff by order of court, and the findings of the court, are very voluminous and deal with a great many matters which would he difficult to briefly state; hut these matters need not he noticed with any great detail, because, in our opinion, the court erred in allowing the cross-complaint to be filed and in dealing with the issues which it sought to raise.

The purpose of the action, as stated in plaintiff’s complaint, is merely to enjoin the defendant Holcomb, as sheriff, from forcibly cutting a hole in a large water pipe of plaintiff, and placing or causing to fl.ow in said pipe certain water. The complaint merely states facts sufficient to entitle the plaintiff to the relief sought. It is averred that the sheriff was about to cut the pipe as aforesaid at a point considerably below its head and

[317]

at an elevation sixty feet lower than said head, and that said threatened act of the sheriff would utterly ruin plaintiff’s water system and prevent the water from flowing hy gravity through the pipe to points below, where the water was supplied to customers. It was averred that the sheriff was about to do this thing by virtue of a writ of execution issued upon a judgment in a certain action brought by one Lewis against the said Fox and others, defendants, wherein, after various answers and cross-complaints, and the bringing in of new defendants, a judgment was entered in favor of said Fox and others against Mary W. Armstrong, P. A. Raynor, and others, decreeing that, as against said last-named defendants, Fox and others had the right to have thirty inches of water put into and carried through said pipe; that in the case at bar the sheriff threatens to do the acts complained of under the execution issued upon said judgment; that the present plaintiff was not a party to that action and is in no way bound thereby, and that the threatened acts of the defendant Holcomb, sheriff, would be, as against plaintiff, a willful and unlawful trespass. Therefore, the only issue tendered by the complaint is the right of the sheriff to proceed under said writ of execution to do the threatened acts.

The defendant Holcomb asked to have Fox and others brought in and made defendants; to this the plaintiff objected, but the court ordered them to be brought in, and plaintiff excepted to the order. Fox and others filed an answer in which some of the averments of the complaint were denied, and which may be construed, perhaps, as asserting the right of the sheriff to pro-1 ceed under the execution. But, in addition, they filed a cross-complaint in which, leaving out of view the right of the sheriff to proceed under the execution, they set out an entirely new cause of action against the plaintiff, averring that by a certain written contract with another party called the Vivienda Water Company, and by various other facts set up, they had acquired a right to run thirty inches of water though the plaintiff’s pipe, and also an additional ten inches of water, and prayed for a decree declaring their right as against the plaintiff to run forty inches of water through said pipe. This cause of action is entirely separate from and independent of the judgment in the said case of