Pico v. Colimas

By the Court, Shafter, J.: This is an action to recover damages for an alleged trespass upon a tract of land in the County of Los Angeles, known as “ The Ranchito.”. It is charged that the defendants unlawfully entered upon said lands and tore down the gate of a cer[580]tain zanja, or ditch, crossing the same and used by the plaintiff for the purpose of irrigation. The general denial contained in the answer must be disregarded, for the complaint was sworn to. The plea of a former action pending requires no attention, fot there was no evidence tending to prov„e it. There were two defenses stated in the answer, however, with reference to which evidence appears to have been taken at the trial, and those defenses are made topics of discussion and controversy here. The first of these defenses admits that “ The Eanchito,” the locus in quo, is the property of the plaintiff, and that the zanja mentioned in the complaint crosses the said place; and it is averred that .the zanja is a servitude thereon; that said servitude is vested in the defendants, and that the plaintiff has no right or title to the ditch nor to the use of the water running in it. In the statement of the second defense the defendants “ admit that the defendant Colimas is a Water Commissioner, or Zanjero for the District of Nietos, in which the zanja is situate, duly chosen and qualified; and they allege that said Colimas, in the rightful discharge of the duties of his office, removed from the said zanja one or more water gates which said plaintiff had, without right, and contrary to law, erected on said water ditch-, and by means of which plaintiff or his agents were wrongfully diverting the water from said zanja and these defendants.”

First-—The gist of the action is the alleged entry upon the Eanchito. The removal of the gate from the zanja is not any part of the cause of action, but is mere-matter of aggravation. (Taylor v. Cole, 3 T. R. 292; 2 Hil. on Torts, 221.). Failing to prove the gist there could be no recovery by the plaintiff for the injury to the zanja (Eames v. Prentice et als., S Cush. 337; Carpentier v. Mendenhall, 28 Cal. 484), and a special defense not justifying the real gravamen of the action would be no justification in effect. Now the first plea admits that the title to and possession of the locus in quo were in the plaintiff, and seeks to justify the entry of the defendants thereon on the ground simply that they had the right to an existing watercourse thereon for the purposes of irrigation. [581]