Appeal from the Fourteenth District, County of Sierra.
This was an action for damages for the diversion of water from the ditch of plaintiff.
The facts are stated in the opinion of the Court, with the exception of certain instructions which were given by the Court to the jury. The instructions given by the Court, at the request of the plaintiff, are as follows:
“ 1. If the jury believe that the plaintiffs did, in July, 1854, project a ditch to receive the water now in dispute, and did give notice to the world of their intention to dig such ditch and appropriate such water, in the usual manner, and did mark out and designate the line of said ditch by the usual marks and indications, and did pursue their work on said ditch with a reasonable degree of diligence until the same was completed so as to receive this water in dispute, then they are entitled to such water before all persons subsequently claiming or locating it.
“ 2. If the jury believe from the evidence, and the admissions contained in the answer, that the plaintiffs took up and claimed the water in dispute before the defendants did, and that they constructed a ditch to receive such water, with due diligence, and that since the completion of said ditch they have been deprived of such water by the defendants, and since the thirty-first of July, 1856, the plaintiffs have had their ditch in a condition to, and could have used the water in the water seftson prior to the commencement of this suit, and have, during such time been deprived of the use thereof by the defendants, then they must find for the plaintiffs and assess the damages.
“ 3. In appropriating unclaimed water on public lands, only such acts are necessary, and only such indications and. evidences of appropriation are required, as the nature of the case and the face of the country will admit of, and are under the circumstances and at the time practicable—and surveys, notices, stakes and blazing of trees, followed by work and actual labor, without any abandonment, will in every case, where the work is completed, give title to water over subsequent claimants.
“ 4. If the plaintiffs surveyed the ground, planted stakes along the line, gave public notice by posting notices, or otherwise, and actually commenced and diligently pursued the work of the Yuba River Ditch, which was to take and receive the water in dispute, and if any of these acts were prior to the claim or location of defendants, this entitled plaintiffs to the possession and ownership of the water, and therefore the jury must find for plaintiffs..
“ 5. If the jury believe that the plaintiffs, with the intention to appropriate this water, used reasonable diligence in following one step by another till the ditch was completed, their title to the water, though it was not perfected until the ditch was so far completed as to convey the water, will yet on completion date from the beginning of the work.
Baldwin, J., delivered the opinion of the Court—-Terry, C. J., concurring.
This is an action for the diversion of water, and the main question was the privity of appropriation. On the trial the plaintiffs offered one Howe as a witness. He was sworn on his voir dire, and upon the facts stated by him on his examination, was objected to as incompetent because interested, and excluded by the Court. The correctness of this ruling is impeached by the appellants, and is the first error assigned. The facts which determine this question of the interest of the witness are these: Witness was, in 1854, an owner in the Yuba Ditch Company, in respect to the water of which this suit is— in 1854 till 1856—was also an owner in a ditch called the Kimball Ditch, from July, 1853, till August, 1854; sold his interest in the Yuba River Ditch Company to Harlow Kimball; the witness’ interest in the Kimball Ditch was sold by the Sheriff; sold interest in the Yuba Ditch Company in July, 1856—latter part of it; don’t know exactly the date. Being asked as to the extent of his interest in the Yuba Ditch, the witness stated: “We were partners, and took up the water; I owned one-half of it then; that was what I supposed when we took it up; I sold my whole right then; I could not tell how much I did own, for I never had paid a cent on it.” “ There was a dispute about the water of the Yuba Ditch, or a part of it, when witness sold; made a deed to Kimball, when he sold it; was paid for it; was paid [45]by note about first of April, 1858, between first and fifteenth; took no mortgage or other security. Being asked how he came to settle and take the note just before the trial in this suit, in April, 1858, answered: “ I was not able to go on with it, and I told them if they would pay me seven dollars per day I would take it and release them, and have no claim on the ditch; bargain made with Harlow Kimball; the note given, witness supposes, "was to enable him to testify; Kim-ball, Johnson and Hickok gave their notes; Kimball sold to Johnson and Hickok two-fifth interests the day witness sold to them; never had a settlement from the commencement of the ditch; they were owing witness $1,000; claimed to hold the ditch for his debt—for work on it; never been paid a dollar; Kimball and Hickok told me to bring in account, and they would settle it.” On cross-examination, witness said: “ In April, 1858, was not interested then or after the deed was made. No other interest than the claim for this money; no mortgage or other security for this money; the deed of the Yuba Ditch Company to Kimball was made for the purpose of Kimball’s transferring a portion of witness’ interest to Johnson and Hickok for heavy indebtedness due from witness and Kimball as owners of the Yuba River Ditch. Kimball, at the time witness transferred to him, transferred two-fifths of this ditch to Johnson and Hickok, and they canceled all the indebtedness due from witness and Kimball; sold out all his (witness’) right, because witness was in debt on it, and could not go on with it”—“was it understood that both were to be responsible for debts? thinks things got were charged to Kimball. Witness never paid anything; Kimball paid all that was paid; witness had ran behind all the time. When we first took the ditch my share was one-half, and when it ran behind I never could exactly know what it was; deeded to Kimball one-half; did it to cover the greatest interest witness ever had; the deed to Kimball and from Johnson and Hickok all parts of the same transaction; so understood to be beforehand; was to give witness seven dollars a day for all the work witness had done from the commencement, and to assume the debts.”
“ 6. That in determining the question of the plaintiffs’ diligence in the construction of their ditch, the jury have a right to take into consideration the circumstances surrounding them at the date of their alleged appropriation, such as the nature and climate of the country traversed by said ditch, together with all the difficulties of procuring labor and materials necessary in such cases.
“ 7. The law does not require a vain or useless thing to be done; that therefore the plaintiffs were not required by the law of due diligence, to complete their ditch before they could successfully use it for the purpose for which they dug it.
“ 8. If the tunnel through the ridge was a necessary part of the plaintiffs’ ditch, without which it could not be used, then it was only necessary for the said plaintiffs to complete their said ditcli by the time they could, with reasonable diligence, succeed in preparing their tunnel for use.”
To the giving of the foregoing instructions, the defendant excepted.
The following are the instructions given at the request of the defendant :
“ 1. If the jury believe from the evidence that the plaintiffs had no ditch or survey for a ditch to the stream of water in dispute, and also that they had no notice or marks upon said stream, indicating an intention to appropriate it, at the time of defendants’ appropriation of the water of the said stream, they must find for the defendants.
“ 2. Possession or actual appropriation must be the test of priority in all claims to the use of water, whenever such claims are dependent upon the ownership of the land through which the water flows.
“ 3. The mere act of commencing a ditch with the intention of appropriating the water of a stream, is not sufficient of itself to give a party any exclusive right to the water of such stream.
“ 4. Although plaintiffs or their grantors may have intended to appropriate the water in dispute, by means of their ditch commenced in 1854, yet, if they did not manifest their intention by such acts or in such a manner as would have notified a prudent man, about to appropriate said water, of such intention at the time defendants appropriated the same, the jury must find for the defendants.
“ 5. The doctrine of relation in the appropriation of water, can only apply when the first acts, from which the party appropriating seeks to date his right, indicate the intention of appropriating such water.
“ 6. If the jury believe from the evidence, that plaintiffs or their predecessors in interest, did not, after locating and surveying their ditch, prosecute the work on it in good faith, and as fast as the nature of the work and the state of the weather would reasonably permit, and that they had neglected the work upon it for an unreasonable length of time, immediately preceding the appropriation of the water in dispute by defendants, the verdict should be for the defendants.
“ 7. If the jury believe from the evidence, that the plaintiffs at the time they commenced the Yuba River Ditch, had not the pecuniary means requisite to complete the same in a reasonable time, and that they projected the said work, and claimed the water in dispute with a full knowledge of their said pecuniary inability to complete the same within a reasonable time, then plaintiffs cannot urge such want of pecuniary means as an excuse for not prosecuting said work with reasonable diligence, and completing it within a reasonable time.
“ 8. If the jury believe from the evidence, that the plaintiffs made an unreasonable delay after claiming the water in dispute, and that during such delay, and before the plaintiffs renewed work upon their ditch, defendants in good faith located and appropriated the water in dispute, they must find for the defendants.
“9. If the jury believe from the evidence, that the defendants were the first appropriators of the water in dispute, in good faith and without notice of any prior claim of plaintiffs, they must find for defendants.
“ 10. Even if the plaintiffs had located and claimed the water in dispute, in the year 1854, and prior to the appropriation of the same by the defendants, yet, if after making such location and claim, plaintiffs failed and neglected to renew or keep in existence such notice or such other evidence of their location and claim, as would have put a reasonable and prudent man, wishing to appropriate the water, on inquiry, and that in the absence of such notices or other evidences of said location or claim, the defendants located and appropriated said water in good faith for mining purposes, they must find for the defendants.
“ 11. Kimball and others are plaintiffs in this action, and they must show a better title to the water in dispute than the defendants have, before they can recover, and the burthen of proof is on the plaintiffs to show that they are entitled to the water in dispute.”
To the giving of which instructions so requested by the defendants, the plaintiffs excepted. The substance of the instructions refused by the Court, appear in the opinion of the Court. Defendants had verdict and judgment.
Plaintiffs moved for a' new trial, which was denied, and they appealed to this Court.
The deposition of the witness was taken, and tended to prove facts material to the issue in support of the plaintiffs’ action. This deposition being offered by the plaintiffs, was objected to by the defendants [46]upon the showing made on the voir dire, and also for another reason, which it is not necessary to consider, as it is embraced in the answer of the witness. The plaintiffs offered in rebuttal an entry made in this case at the April Term, 1858, to this effect: “ On motion of plaintiffs’ attorneys it is ordered, that plaintiffs have leave to strike from their complaint their claim for damages previous to July 19th, 1856—the date of Howe’s deed to Kimball.” But no amendment to the complaint in this respect seems to have been made. The plaintiffs also offered a paper in these words: “ The plaintiffs in the above entitled cause release and remit to the defendants in said cause all claim and demand for damages contained in their complaint for the whole of the month of July up to the first day of August, A. D. 1856.
(Signed) Kimball & Co.
By their Attorneys, H. I. Thornton, Jr., and J. R. McConnell.”
And filed it among the papers in the cause.
The declaration is for damages for the diversion of water fay 1855 and succeeding years.
It is unnecessary to consider these matters subsequent to the taking of the deposition which was introduced to give it effect. The mere order permitting an amendment of the complaint was of no effect unless and until complied with. The release or remittitur was of no force, even if the attorneys at law signing it had any legal authority to execute it, which, to say the least, is extremely questionable: for the plain reason that to make the testimony of the witness admissible, he must have been competent at the time of the taking of his deposition. It is of no importance that he is competent afterwards, as it is the effect of the interest on the witness which disqualifies him. Whether he was interested or not depends on the issue; that issue, in this case, upon the pleadings, was the title to damages arising from a diversion of water before 1856; and this question, of course, depended upon the ownership of the water, such ownership following from the fact of prior appropriation. The question of interest then rests on this: Would the witness have gained or lost by the verdict ? [47]It seems that he and Kimball were joint owners before the date of the deed to Kimball, in July, 1856. For an injury to or an appropriation of the common property, while they were such joint owners, these owners were entitled to damages. If a recovery had been had by one, the benefit would have resulted to both. The partner or tenant in common would have held these damages in trust for both, just as if the defendants had voluntarily paid the amount of these damages to one of these owners. The sum so paid would have been the property of both. The subsequent deed to Kimball, though it carried the property and the future use of the water, did not retroact and carry the right to damages for the past illegal use of it, any more than a deed to land carries the remedies for past trespasses. An ingenious argument is made by the appellants’ counsel to show that by the failure of Howe to pay his proportion of expenses, the estate he had was forfeited as on a condition subsequently broken, and that all remedies and rights touching the estate, by relation, attach to the other party. We are unable to see the force of the argument. It is equally unfounded in law and in fact, for here there was no original, independent estate in Kimball; he made no deed or contract on condition subsequent. If not estopped by the deed from Howe to deny Howe’s title, the facts sufficiently show, notwithstanding his not very satisfactory explanations, that Kimball and Howe were partners in this adventure, with equal rights in the subject of it, and it is evident that the mere failure of one partner to pay his proportion of expenses, or of the debts of the concern, does not forfeit his rights in the common property. We think, in the aspect in which this witness presented himself, it is the case of one partner suing for an injury done to the firm property, and calling the other as a witness to prove his case.
The argument founded upon the peculiar nature of this property is more subtle than sound. It is true that the mere right to water is a sort of incorporeal thing; but the water itself is substantial and tangible, and as the right gives the control and possession of this commodity, and entitles the party to damages for its diversion by another, we do not see why this right may not be acquired by two or more acting together, or why, when they do acquire it, they do not hold it as other property, and may not sue as such for any unlawful interference with it.
[48]The Court, therefore, did not err in excluding this deposition. Nor do we see in the statement of this witness, when properly construed, any evidence of abandonment. Howe and Kimball acquired this property as partners; for a sufficient consideration one relinquishes to the other his interest in the joint property. The nature of the property has no effect on the transaction. It is the common case of a bargain and sale by one partner to another, none the less partaking of the nature of a bargain and sale, because the selling‘partner was indebted to his associate on account of the firm business, and, for this purpose, makes the sale.
The next question is, whether the verdict is so clearly against the weight of evidence, that we are called upon to reverse the judgment of the District Court before whom it was given, and grant a new trial ? This Court has so frequently held that it would only interfere in extraordinary cases with the decisions of. the lower Courts in this respect, that it is useless to repeat the rule laid down. It is almost impossible for an Appellate Court to satisfy itself in a decision upon such matters—so much depends upon the manner, bearing, character of witnesses, and the peculiar circumstances which the transcript fails to preserve, which give value and weight to testimony.
The main question was as to the priority of location of this ditch, and this depended very much upon the general fact whether the plaintiffs had done such acts in 1854 as would, in August, 1855, when they completed their ditch to the water in dispute, entitle them to invoke the doctrine of relation, and get in, in advance of the actual appropriation of the water by the defendants; and upon this question there was no little conflict in the proofs. The conflict is in respect to the dates and character of the particular acts from which the appropriation is inferred. If there were no other circumstances of conflict than those contained in the testimony of James as to the time of marking the trees, this would, perhaps, be sufficient to be left to the jury for them to determine the weight and effect of the proofs. But there are various other matters of more or less weight, such as the admissions of Howe and the like.
The points made by the appellants question the propriety of certain instructions given, and of the refusal of other instructions asked.
[49]A large number of instructions were given by the Court, and several refused. Those given are expressed with great clearness and precision. They embody the law as ruled by this Court, and propositions necessarily resulting from those settled heretofore. Several instructions were refused by the Court. They are marked seven, eight and nine of the list of those asked for by the plaintiff. The seventh instruction was to this effect: That if the plaintiffs did, in the Summer of 1854, acquire a right to the water in dispute, then the law presumes they retained the right so by them acquired, and the burthen of proving an abandonment on their part is with the defendant. This was refused, because there was no testimony showing that in 1854 the plaintiffs had acquired any such right. The instruction, as it stood, was at least ambiguous, and calculated to mislead. The right of the water did not, in strictness, accrue until the completion of the ditch—though the initiatory steps in 1854 might, by force of the subsequent event, have given title as against a subsequent appropriation from 1854, if done in that year. But this general language, though proper in some sense, was calculated to convey a wrong impression, as the jury might have inferred that these acts, of themselves, gave a right to the water. When the Court gave its reason for withholding the instruction, the appellant, if he desired the charge as to the abandonment to be given to the jury—for the Court had fully instructed the jury as to the other portions asked — should have removed this objection to it. Indeed, it is not clear that the whole substance of the legal portion of this charge had not already been given.
The eighth and ninth instructions are, in substance, that the jury should not regard any proof offered of abandonment, inasmuch as no such defense as abandonment is specifically set up in the answer. The complaint is general, not setting forth the character of title, or the facts constituting the title of plaintiff. It avers, in general terms, that “ on or about the month of July, 1854, the said plaintiffs and their predecessors claimed, located, appropriated and became the owners of, and became entitled to the possession, use and enjoyment of, for mining purposes, the water and waters flowing,” etc. The answer denies this general averment. Thus is put in issue the very question of title, and this involves necessarily the due prosecution of the work after the [50]appropriation, or, in other words, after the indication by some palpable and unequivocal outward sign of the intent to appropriate. The title to the water does not arise, as we have intimated before, from the manifestation of a purpose to take, but from the effectual prosecution of that purpose. This prosecution, therefore, is a necessary element of a title, and the negation of this, the abandoning of the purpose, is not so much matter in avoidance of a title; as it is matter showing that no title was ever obtained. Besides, if parties go to issue, in actions of this kind, upon general averments and denials of title, we think that anything that legally supports or attacks the title is admissible in evidence, and may be applied by the jury to sustain or defeat it.
The other instructions are not liable to serious objection. Indeed, we may remark that all the instructions given by the Court seem not only prepared with remarkable care, but that they present, with extraordinary clearness and accuracy, the various questions of law, bearing on the case, to the jury.
The judgment is affirmed.
AI Brief
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Holding. The court held that a witness who was a partner in the property at the time of the alleged injury is incompetent to testify due to interest, and that the subsequent sale of his interest to a partner does not retroactively grant the right to damages for past injuries. Furthermore, the court affirmed that evidence of abandonment is admissible under a general denial of title in water rights litigation.
Issues
Whether a witness who was a partner in the property at the time of the alleged injury is disqualified by interest from testifying.
Whether a subsequent deed transferring property interest carries the right to damages for past trespasses or injuries.
Whether evidence of abandonment is admissible under a general denial of title in a water rights action.
Whether the trial court's instructions to the jury were legally sufficient and accurate.
Disposition. affirmed
Quotations verified verbatim against the opinion
“it is the effect of the interest on the witness which disqualifies him. Whether he was interested or not depends on the issue”
“The subsequent deed to Kimball, though it carried the property and the future use of the water, did not retroact and carry the right to damages for the past illegal use of it”
“if parties go to issue, in actions of this kind, upon general averments and denials of title, we think that anything that legally supports or attacks the title is admissible in evidence”