Barham v. Hostetter

Foote, C. This was an action brought by eleven plaintiffs to restrain an alleged diversion of the waters of a certain creek, by the defendant, and for damages for such alleged diversion.

The appeal is prosecuted from the judgment of the trial court in dismissing the action, and from an order dissolving a preliminary injunction.

[273]The judgment roll discloses that a demurrer was interposed to the complaint, and that it was sustained, and the plaintiffs declining to amend upon leave given, the action was dismissed with costs against plaintiffs.

This judgment of dismissal was made on the 4th day of October, 1884, leave to amend for twenty days having been previously given on the 21st day of July, 1884.

The preliminary injunction was dissolved on the 3d day of June, 1884, and the appeal from the judgment and order was not taken until the 22d day of January, 1885.

The order dissolving the injunction cannot be reviewed here, as the plaintiffs did not take an appeal from that order until far more than sixty days had elapsed. (Code Civ. Proc. § 956; McCourtney v. Fortune, 42 Cal. 387.)

The only questions then left for discussion are those under-" lying the judgment of dismissal of the action.

Unless the demurrer to the complaint ought to have been overruled, this judgment was undoubtedly right, for the plaintiffs did not avail themselves of the ample opportunity to amend their complaint granted them by the court on sustaining the demurrer.

The grounds on which the demurrer was sustained are as follows: —

1. That there was a misjoinder of causes of action.

2. That the complaint was ambiguous, unintelligible, and uncertain, for the reason that the real estate and ditches of the plaintiffs were not described with sufficient certainty, and that it did not appear which of two plaintiffs named Barham were interested in ditches Nos. 10, 11, and 12, as set out in the-complaint.

The purpose for which the action was instituted, as appears-from the body and prayer of the complaint, was to restrain the defendant from depriving the several plaintiffs of water for irrigation purposes, carried by various ditches to certain distinct, parcels of land owned not jointly, but separately, by different plaintiffs, and to recover $500 damages alleged to have been done to the plaintiffs in the aggregate.