Astill v. South Yuba Water Co.

SHAW, J.

The defendant appeals from the judgment and from an order denying its motion for a new trial.

There is no misjoinder of causes of action. The plaintiff does indeed complain of what technically constitutes two distinct nuisances. One is caused by the negligence of the defendant in allowing water to escape from the banks of a ditch owned by the defendant and extending over the plaintiff’s land, whereby the land is made swampy and marshy, constituting a nuisance. The other is alleged to consist of a reservoir into which water from the ditch flows, which reservoir was allowed to become filled with vegetable matter, which became rotten and decayed, and thereby caused a nuisance. This, however, dogs not constitute a misjoinder. Section 427

[57]

of the Code of Civil Procedure allows the joinder of two or more causes of action belonging to the same class. Plaintiff might therefore in the same complaint set up any number of separate causes of action for distinct nuisances without being guilty of a misjoinder. The fact that they are not separately stated in the complaint is not a cause of demurrer; nor do different elements of damage, arising from the same nuisance, constitute different causes of action. Under section 731 of the Code of Civil Procedure, and at common law without the aid of that section, the party injured by a nuisance may in the same action obtain a judgment abating it and recover the damages caused thereby.

(Yolo Co.

v.

Sacramento,

36 Cal. 196; 14 Ency. of Plead. & Prac. 1116.)

The defendant contends that the findings are not supported by the evidence, and assigns many particulars in which it is claimed the evidence is insufficient. On an examination of the record, however, we think there is ample evidence to support all the findings. There is evidence to the contrary, it is true, but it is not of the province of the court to determine questions of the preponderance of evidence.

Several rulings are complained of excluding testimony tending to show adverse use of a part of the land upon which it is alleged a nuisance existed, and which it is claimed would tend to prove title to such land in the defendant. There was no error in this ruling. There was no claim set up by the defendant to a fee-simple title to any land. The plaintiff was the grantee of the patentee of a certain subdivision of United States government land. He held the title subject to the rights of the defendant, acquired through its predecessor previous to the issuance of the patent, to maintain a reservoir thereon and carry water thereto through a ditch over the plaintiff’s land. The reservoir was in part situated on plaintiff’s land, and in part on other lands adjoining thereto. This alleged right was not a fee-simple title, nor anything more than a mere easement, dependent upon use. The court found, and the evidence supported the finding, that the area of land covered by the water in the reservoir, if it was filled to the brim, was some twenty-four acres, of which eight and eighty-five hundredths acres was on the land of the plaintiff. There was some contention on the part of the defendant that it had title to some land extending farther up the ditch beyond