Campbell v. Bear River & Auburn Water & Mining Co.

California Supreme Court Jul 1, 1868Published

Before: Crockett

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Holding. The court affirmed the judgment for the defendant, holding that the trial court's error in overruling a demurrer to affirmative matter in the answer was harmless, and that the defendant was only required to exercise ordinary care in managing its ditch.

Issues

Whether the trial court erred in overruling the plaintiff's demurrer to affirmative matter in the answer.
Whether the trial court erred in refusing to instruct the jury that the defendant was liable for all damages avoidable by any possibility.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The defendant was bound to the use of such care in the management of the ditch as prudent persons employ in the conduct of their own affairs.”

“It was not bound to indemnify the plaintiff for all damage which could have been avoided “by any possibility;” but only for such damage as resulted from, a want of the ordinary care which prudent persons exercise in the management of their own property.”

Synopsis

Damage to Land by Water Ditch.—In an action to recover damages for an alleged injury to the plaintiff’s land, resulting from the careless management of the defendant’s water ditch, which traversed the land: Held, that the defendant was bound to exercise no greater care to avoid the alleged injury to the adjoining lands than prudent persons would employ about their own affairs under similar circumstances.

Idem.—The true principle applicable to such cases is, that in order to avoid doing a damage to the property of another, a person is bound in law to such care in the use of his own property as a prudent man would employ under similar circumstances, if he were himself the owner of the property exposed to damage.

Demurrer—Error, when Immaterial.—Where the Court erroneously overruled plaintiff’s demurrer to certain new matter contained in the answer, under which, however, the defendant, at the trial, introduced no proof: Held, that the plaintiff’s case was not prejudiced by such erroneous decision, and that it furnishes no ground for a reversal, on appeal, of a judgment rendered for the defendant.

By the Court, Crockett, J.: This is an action to recover damages for an alleged injury to plaintiff’s lands, resulting from the careless management of the defendant’s water ditch, which traverses the land. The complaint avers that the plaintiff is the owner in possession of the land, under a patent of the "United States, and had appropriated it for agricultural purposes before the construction of defendant’s ditch. It avers that the defendants had so negligently constructed and managed the ditch that by reason thereof the plaintiff’s grounds were submerged and covered with sand and gravel, and her buildings and orchard seriously injured. The answer does not sufficiently deny either the prior appropriation of the land by the plaintiff, or that she holds it under a patent from the United States; but avers that her patent was obtained by fraud, and denies all negligence in the construction or management of the ditch, or that the plaintiff has suffered any damage from that cause. The plaintiff demurred to so much of the answer as sets up affirmative matter; but the Court overruled the demurrer, and the plaintiff excepted.

[682]On the trial the evidence was conflicting in respect to the negligence complained of, but the defendant offered no evidence in support of the allegation of fraud in procuring the patent, and the patent was put in evidence by the plaintiff. A verdict and judgment having been rendered for the defendant, the plaintiff moved for a new trial, which was denied, and the plaintiff has appealed.

The only errors complained of are: 1st. The overruling of the demurrer to the answer; 2d. The refusal of the Court to give two instructions to the jury which were requested by the plaintiff.

We incline to the opinion that the Court ought to have sustained the demurrer to the affirmative matter set up in the answer, but it is evident the plaintiff has suffered no damage from this course. The Court instructed the jury that the pleadings admitted' the prior appropriation of the land by the plaintiff, and the issuing of. the patent, and no proof was offered by the defendant with the intent to impeach the patent. The plaintiff’s case was not damaged by the affirmative matter in the answer, which was not attempted to be supported by proofs. The only issue before the jury, to which any evidence was adduced, was in respect to the alleged negligence of the defendant, and the consequent damage to the plaintiff. It would be a vain act, therefore, to reverse the judgment because the District Court erroneously allowed to remain in the answer affirmative matter which was not supported by proof, and which can in no manner have prejudiced.the plaintiff.

Campbell v. Bear River & Auburn Water & Mining Co.

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