Turpen v. Turlock Irrigation District

VAN DYKE, J.

The action was brought to recover damages for injuries to plaintiff’s land caused by the seepage of water from the canal of the defendant corporation, and for an injunction. Special issues in reference to the damages caused by the seepage were submitted to a jury, and a verdict rendered in favor of plaintiff for the sum of $475. Findings were also filed and judgment rendered in favor of plaintiff. The defendants moved for a new trial, which was denied, and the appeal is taken by said defendant corporation from the order denying a new trial.

It is contended by the attorney for appellant that the alleged damage occurred while the canal was in course of construction by the defendant Waymire, and that appellant was in no way responsible therefor, said Waymire being an independent contractor, and appellant complains of the finding to the contrary. But on the trial both counsel for defendants corporation and Waymire stipulated “that as between said defendants it was agreed that if plaintiff recover a judgment, it should be a joint judgment, reserving the right to adjust the responsibility as between themselves thereafter. Defendant district accepts responsibility for the management of the canal, so far as the plaintiff is concerned, and, so far as plaintiff is concerned, the district, defendant, does not set up that the defendant Waymire was an independent contractor, and the two agree that if the jury render a verdict in favor of plaintiff at all, it may run against both defendants, and as to whether Waymire was an independent contractor or an employee, they would determine that thereafter.” It was not necessary for the court to find upon that subject, but the de

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fendant has no ground to complain, inasmuch as the finding is according to the stipulation, and is therefore harmless.

It is further alleged by appellant that the canal was fully constructed across plaintiff’s land at the time of a certain condemnation suit by appellant against the plaintiff, and the appellant upon this trial offered to prove the proceedings in said suit, and that plaintiff was fully compensated in that action for the damages claimed in this action, and it is claimed that the court erred in refusing to allow such proof and the findings by the court to the contrary. But the proceedings referred to were not pleaded by the appellant, and, further, damages caused by the seepage from faulty construction of the canal could not have well been anticipated, and were not included in the condemnation proceeding.