Daly v. Ruddell

[673]

HENSHAW, J.

These are separate appeals, the one from the judgment, the other from the order denying defendant’s motion for a new trial. They may, however, be considered together.

Ruddell and the plaintiffs Truesdell were owners of certain water rights. They entered into a contract with Smith, since deceased, whose estate is represented by Daly, administrator and plaintiff, whereby Smith was to furnish and lay certain pipe for the conduct of the water developed and to be developed, in return for which he was to receive a certain proportion of the water thus conveyed during the " dry season of the year.” Smith, the court finds upon supporting evidence, furnished 12,100 feet of pipe suitable for the purpose, and then borrowed and used below this point about one hundred and fifty yards of a smaller and inadequate pipe. This pipe was the property of Ruddell and the Truesdells, and through this pipe Smith obtained his water for nearly three years, until Ruddell, wishing to use the pipe to carry water in the canon from a spring to the main point of diversion, and asserting that Smith had violated his contract in not furnishing suitable pipe, and that his rights under the contract were at an end, tore up the pipe, and then used it for the indicated purpose. Smith, by his agents, went upon the land to supply suitable pipe which was lacking, and to put the 'pipe-line in good order, but was forbidden to do so, and prevented from so doing, by Ruddell. Later, Ruddell also tore up that portion of the pipe conveying water to the Trues-dells, and the Truesdells thereafter failed to obtain their supply. The Truesdells and Smith then joined as plaintiffs in this action, setting forth the contract and the violation of it by Ruddell. They sought specific relief under the contract, asked that Ruddell be compelled to make conveyance to them of their respective rights to the water, and be enjoined from further interference with those rights. The complaint was demurred to for misjoinder of parties plaintiff, and it is urged in support of the demurrer that plaintiffs had no common interest in the subject matter of the action or in the relief demanded. (Code Civ. Proe., sec. 378.) It is said that the causes of action of the plaintiffs are separate and distinct, having their origin not in a common tort against all the parties, nor in the violation of the contract affecting