Rogers v. Riverside Land & Irrigating Co.

[10]

VAN DYKE,J.

J. — On the fifth day of February, 1890, the North Riverside Land and Water Company was the owner of the portion of the canal in question here, from the source of the same in the Rancho San Bernardino down to the west line of the Rubidoux Rancho, and on that day conveyed the same to the Stearns Ranchos Company. The deed of conveyance contained the following reservation: “Hereby specially reserving, however, the right of way to carry through such canal the 350 inches of water, being the same 350 inches reserved by first party in its conveyance of other water to second party by indenture dated May 23, 1888, . . . subject, however, to first party’s paying the proportion of the entire expense of maintaining and repairing such canal that 350 inches of water sustains and bears to the entire amount of water from time to time being carried through said canal.” The plaintiff is the lessee and tenant in possession of said canal under the said Stearns Ranchos Company. The defendant, by mesne conveyances from the North Riverside Land and Water Company, acquired its said right to a portion of -Said water to be carried through said canal. The suit is for the portion, alleged to be due from the defendant, of the expenses of maintaining and repairing such canal or ditch from June 1, 1897, to August 1, 1898. The aggregate expenses for the whole canal were $4,386.35, defendant’s portion thereof being $358.32, for which amount judgment was rendered in favor of the plaintiff.

The first point made by appellant is, that the court erred in overruling defendant’s objection to the admission in evidence of the judgment rolls in the cases of B. R. Smith against Stearns Ranchos Company, and Riverside Land and Irrigating Company

v.

Stearns Ranchos Company. Among the items in the aggregate expenses are five hundred dollars, attorney’s fees for defending the suits in question.- This, and twenty-five dollars attorney’s fees in another case, going into the aggregate expenses, are the only items of expenses in reference to which any question is raised. The introduction of the judgment rolls was for the purpose of showing the nature of the actions, and the necessity of incurring the expense of attorney’s fees in defending the same. The actions in question were brought to restrain the defendants therein from making certain changes and alterations in certain flumes, boxes, pipes, and penstocks.