Parker v. Gregg

[414]

THE COURT.

Judgment was for plaintiff in the court below, and defendants appeal from an order denying their motion for a new trial.

The respondent is, and has been for forty years, the owner of a ditch by which he diverts, and for forty years has continued to divert, the waters of a natural stream called the East Pork of Scott River, in the county of Siskiyou. The action was brought to ' recover damages of appellants for repeated removals of respondent’s dam at the head of said ditch, and to have them enjoined from a repetition of the trespass. The questions involved are mainly questions of fact, appellants contending that certain findings of the court are not justified by the evidence.

The finding of the court as to the capacity of' respondent’s ditch, which is attacked by appellants, cannot be disturbed. The evidence on the point was substantially conflicting; and the court was not bound to take as true the testimony of one of appellants’ witnesses, who swore that he had measured the ditch, and to disregard the testimony of several of respondent’s witnesses, who placed its capacity at a larger figure than the one given by the said witness of appellants. Whatever may be the meaning of section 1835 of the Code of Civil Procedure, it is clearly modified by the subsequent section 2061, which provides that “in civil eases . . . when the evidence is contradictory, the decision must be made according to the preponderance of evidence”; and it is settled law that where in such a case the evidence on an issue of fact is fairly and substantially conflicting the finding of the trial court must stand.

The finding that the damages were caused by the acts of appellants must also stand. There is some contention that the dam mentioned in the complaint was not the identical one which was torn out by appellants; but this is not maintainable. It is averred in the complaint that respondent diverted the water into his ditch by “small dams,” and the court found that appellants had interfered with and destroyed the “dam and dams” by which the water was diverted. It appears from the evidence that the place where the ditch tapped' the stream was level and swampy, and that the stream, as one of the witnesses described it, “kind of halted,” and

[415]