De Freitas v. Town of Suisun City

SHAW, J.

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

The complaint alleges that plaintiff Joseph de Freitas is the owner in fee of fifty acres of land in which Marianna

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de Freitas has a life interest; that Joseph is in possession under lease from Marianna; that the defendant is the owner of an adjoining tract of land containing one hundred and seventy-one acres; that upon the plaintiffs’ land there were springs the waters of which, for more than thirty years past, plaintiffs have used to irrigate their said land; that in the year 1908 the defendant dug a tunnel on its land near the plaintiffs’ line for the purpose of obtaining water therefrom; that by said tunnel it diverted the underground water supplying plaintiffs ’ springs and caused the same to become dry,' thereby depriving plaintiffs of water belonging to their land, to their damage in the sum of ten thousand dollars. The defendant answered, denying the allegations of the complaint. There was a trial by jury resulting in a verdict in favor of “the plaintiff” in the sum of four thousand dollars. The court thereupon entered judgment in favor of Joseph L. de Freitas against the defendant for said sum.

It is claimed that the evidence does not sustain the allegation that the tunnel dug by the defendant intercepted the water sources supplying the plaintiffs’ springs. The evidence on this point is not satisfactory, but we cannot say that it is insufficient to warrant the conclusion that the defendant’s tunnel intercepted the flow to plaintiffs’ springs and diverted the water thereof from plaintiffs’ land. We cannot disturb the verdict on that account.

We think the court below erred in overruling defendant’s objections to hypothetical questions put to the witness Gordon ■regarding the value of the land in question and the damages sought by the plaintiffs and in refusing to strike out his answers. The. measure of damages caused by the diversion of water from plaintiffs’ springs would be the difference between the value of plaintiffs’ land before the diversion complained of and its value if it were permanently deprived of the water so diverted. The witness Gordon was produced to give evidence upon this subject. He stated that he was a farmer and fruit grower and that he had seen the plaintiffs’ land a few days before the trial but had not examined it with any view to estimating its value; that he owned some land and was acquainted with land values in the vicinity and with the market values of the class of land such as that of the plaintiffs. Thereupon the plaintiffs’ counsel put to him a hypothetical question, in substance as follows: “Conceding