Churchill v. Louie

CHIPMAN, C.

Action to restrain defendant from diverting the waters of Butte Creek, Siskiyou County, and for damages.

The cause was tried by a jury, and a general verdict was rendered for plaintiff, assessing his damages at five hundred dollars. The court made full findings of facts, and found, as did the jury, that plaintiff was damaged by defendant in the sum of five hundred dollars; that plaintiff was entitled to the uninterrupted flow of one thousand inches of water, under a four-inch pressure, flowing through the stream, and decreed that defendant be restrained from diverting any of the waters of the creek “when there, is not to exceed one thousand inches of water, measured under a four-inch pressure.” Defendant appeals from the judgment and from the order denying his motion for a new trial.

Defendant presents but two questions:—

1. It is contended that the court erred in refusing defendant certain testimony in support of his defense of adverse use of the'waters of the creek. The allegation of the answer was as follows: “And for a further answer defendant shows: That he and his predecessors have during the period of eleven

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years and more last past, and openly, notoriously, peaceably, adversely, uninterruptedly, and under a claim of right and title thereto, used and appropriated eighty inches measured under a four-inch pressure, of the water of said Butte Creek, for irrigating his said lands, and that such use is necessary and proper therefor.” When the offer was made, plaintiff objected that the evidence is incompetent, irrelevant, immaterial, and not within the issues of the case, and the further objection that it does not present a defense, and the answer does not plead a prescriptive right or any adverse use sufficient to give title. In sustaining the objection, the court remarked: “I will allow you to introduce proof on the appropriation, but not on the adverse claim, . . . the claim of prescriptive right. I will allow proof as to the use of the water in rebuttal of plaintiff’s case as to quantity and continuation of the use,—that is, as a defense to that portion of it,—under an affirmative right, not a prescriptive right, under the answer. I will allow you to file an amendment to the answer if you wish.” Defendant rested on his exception, and did not offer to amend his answer. It was said in