Edgar v. Stevenson

Thornton, J. This is an action for an injunction to restrain the diversion of water.

We cannot perceive that the defendant was injured by the refusal of the court below to allow him to file an amended answer. The matters averred in the amended answer might all have been proved under the answer originally filed. Error without injury affords no ground for reversal.

The defendant presented to the court certain findings, and asked the court “to find the same as facts in the case,” which the court refused, and defendant excepted.

That this is not error we consider clearly settled in this court by the cases of Hidden v. Jordan, 28 Cal. 304, and Miller v. Steen, 30 Cal. 402, S. C., 89 Am. Dec. 124. See Porter v. Woodward, 57 Cal. 537,538. It was held in Miller v. Steen, supra, that a party requiring a finding upon a particular point should specify the point, without dictating the terms of the finding. The right of the party is only to specify or suggest the point on which a finding is required. (See cases above cited.) For the above reasons, we hold that the court below did not err in refusing to find as facts in the case the findings presented.

The evidence as to the issue whether there was a continuous watercourse through the lands of plaintiffs was conflicting; and in accordance with the well-settled rule [288]of this court, there can be no reversal on the ground of insufficiency of the evidence to justify the finding on that point.

The court made the following findings:—

“1. That the plaintiffs are the owners and in possession of, and their grantors, ancestors, and predecessors have been all the time since March, 1859, the owners of and in the possession of, the land and premises described in the complaint herein.

“2. That for more than twenty years immediately preceding the commencement of this action, the plaintiffs, and their grantors, ancestors, and predecessors in interest, have cultivated the aforesaid land in orchard, vineyard, and usual annual crops, and are still so doing.

“ 3. That there is, and has been from time immemorial, a natural stream of water, sometimes known as Little San Gorgonio Creek, and sometimes called Edgar Creek, which is the same that is designated in the complaint as Edgar Creek, which has its source in the mountains northerly from said land of plaintiffs, and flows in its natural course to, upon, and across the aforesaid land of plaintiffs; said stream, before it reaches said land of plaintiffs, sinks in the sand at several places, and rises again and flows above the ground, but it is one continuous, well-defined stream and watercourse until after it crosses and passes upon and over and across said land of plaintiffs.