Parke v. Kilham

Burnett, J., delivered the opinion of the Court—Murray, C. J., concurring. This case was decided at the last April Term of this Court, and [79]a re-argument had at the present time. We are satisfied, upon a more full argument and a more careful consideration of the case, that the judgment of the Court below should be reversed, and a new trial had. The learned counsel for the defendant insists that we did not correctly understand him, when we said, in a former opinion,.that “this position is based upon the idea, that the proper point could not be designated with certainty by a proper survey, but must be determined by the actual construction of the ditch.”

Taking the language of the brief in connection with the facts as proved, we did so understand the counsel. It was proved by Cunningham, one of defendant’s witnesses, that “ the base line was run for the purpose of determining where the ditch would strike the creek. This point was ascertained by starting at the upper end of the base line, and leveling up the creek far enough to allow the ditch a sufficient declivity, which we did in October, 1852, and we placed our notice of claim of water at this point on the creek above the end of the base line.” “ It was not until the spring of 1853, that we thought of adopting the upper line, on which we dug the ditch.”

This statement of the witness is very explicit, and shows that the point where the notice was placed, was intended as the upper terminus of the ditch. This being true, the argument of the learned counsel would hardly be applicable to the facts proved, unless taken as we understand it. We, however, cheerfully make the correction.

It is, undoubtedly, true, that a base line is generally first run from the point where the water is to be used, to the stream from which it is proposed to be taken. This line is run upon a level, and the object is to ascertain the fact, whether the water in the stream can be made to flow to the point where it is intended to be used. The line upon which the ditch is actually intended to be dug, should afterwards be run within a reasonable time, which must depend upon the circumstances of each particular case.

The instruction offered by the defendants, we now think, was substantially correct, and should have been given.

There was a point made by the defendant which we did not notice in our former opinion. It is insisted that there is a misjoinder of parties plaintiffs, as they were tenants-in-common, and should have brought separate suits for the restitution of the water. In the case of Johnson v. Sepulveda, 5 Cal., 149, it was held, that “for injuries to their common property, as trespass, guare clausum, fregit, or nuisance, etc., tenants-in-common should all be joined, but they must sue severally in real actions, generally, as they have separate titles.” See also Throckmorton v. Burr, 5 Cal., 400.