Tonini v. Ericcsen

CURTIS, J.

This action was brought to restrain the defendant Ericcsen from permitting waters from Russ Creek, which defendant Ericcsen had diverted on to his own lands, to escape to and on to the lands occupied by the plaintiff, and for damages already sustained by the plaintiff by reason of water escaping from defendant’s said lands on to the lands in the possession of the plaintiff. Defendant answered and claimed a right, or easement, to have the waters of Russ Creek flow over and across the said lands, of which the plaintiff was in possession. The question of damages was submitted to a jury and resulted in a verdict of $500 in favor of the plaintiff. The equitable issues involved in the action were then tried by the court, and at the conclusion thereof the court made findings, and upon said verdict and findings, gave judgment in favor of the plaintiff in the sum of $500, and enjoined said defendant from interfering with the natural flow of Russ Creek in such manner as to cause the waters thereof to escape upon the lands of the plaintiff. In the judgment, plaintiff was awarded his jury fees as costs, but the court denied him any further costs. From that part of said judgment denying him his full" costs, the plaintiff has appealed. We think the court erred in limiting plaintiff’s recovery of costs to jury fees only. Section 1022 of the Code of Civil Procedure provides that, Costs are allowed of course to the plaintiff, upon a judgment in his favor, in the following eases: (3) In an action for the recovery of money or damages; (5) In an action which involves the title or possession of real estate, . . . ” While the present action involved the right of the plaintiff to an injunction, it was also one for the recovery of damages. Furthermore, one of the main issues involved was whether or not the defendant was the owner of an easement to have certain waters from Russ Creek flow over the lands occupied by the plaintiff. Such an action involves the title or possession of real estate.

(Hoyt

v.

Hart,

149 Cal. 722, 730 [87 Pac. 569].)

[41]

“ In determining whether a party is entitled to costs as of course in such cases the question does not depend upon the nature of the action,—whether legal or equitable,—but depends rather upon the question whether the case comes within the terms of the statute relating to costs,—namely, section 1022 of the Code of Civil Procedure. And although, as pointed out elsewhere in this article, the granting of costs is usually discretionary in equitable actions, nevertheless, the form of the action is immaterial where the case comes within the provisions of section 1022.” ' (7 Cal. Jur., p. 258.) The cases cited in the footnotes in support of the text containing the above statement of law amply support the text and declare the law as set forth therein. Under these decisions we think it was the plain duty of the trial court to allow the plaintiff all costs legally incurred by him in the prosecution of said action. There is nothing to be found in the authorities cited by respondent inconsistent with this conclusion.