Reed v. Spicer

By the Court, Shifter, J. This is an action of ejectment brought to recover the possession of certain premises described as “The Mountain Brow Water Company’s Ditch—consisting of dams, ditches, flumes and reservoirs used for mining and irrigating purposes, lying and being situate in the Counties of Calaveras and Stanislaus.” Trial by jury—verdict and judgment for plaintiff. The appeal is from the judgment and from the order overruling defendants’ motion for a new trial.

It appears from the record that the ditch in question crosses certain two leagues of land which, on the 25th of January, 1860, were owned by Salsbury & Haley and James Phelan, as tenants in common—and certain other lands belonging to one Packard, adjoining the lands first mentioned, on the west. On the aforesaid date Packard conveyed to the plaintiff that part of the ditch which crossed his own land, and ten feet additional on each side of it; and on the 26th of June, 1862, Phelan executed to the plaintiff a deed purporting to convey that section of the ditch which crossed the two leagues owned by the grantor in common with Haley, with a like selvedge of ten feet on either side. The plaintiff having proven these facts, and shown the defendants in possession, rested his case.

The defendants, in support of the issue on their part, offered in evidence a deed executed by said Haley to Thomas Spicer, one of the defendants, January 25th, 1860. The evidence was objected to, first, on the ground that the deed did not convey, nor purport to convey, any interest in the land in question, but merely an interest or easement in certain lands belonging [62]to Spicer, the grantee; and, second, on the ground that Haley, being merely a tenant in common of the land, could not grant an easement therein. The objections were sustained, and the defendants excepted. The defendants then offered to prove by Spicer that the ditch was constructed in 1856, and that it was constructed by the defendants and those from whom they derived title, and that they had ever since held the ditch adversely to the plaintiff and his grantors. It being already in proof as a part of the plaintiff’s case, that he held under a Mexican grant confirmed under the Act of Congress, and that the patent founded thereon did not issue until 1863, the Court excluded the evidence, on objection of the plaintiff, and the defendants excepted. These rulings of the Court we are now called upon to review.

1. As to the exclusion of the deed from Haley to defendant Spicer.