Emerson v. Bergin

Belcher, C. C. This action was commenced to obtain á perpetual" injunction restraining the defendant from obstructing the flow of water into a pipe leading from a distributing cistern on land owned and occupied by the wife of defendant to land owned and Occupied by plaintiff.

By his answer defendant admitted that he had obstructed the flow of water into the pipe, as alleged in the complaint, and then set up certáin facts to show that he was justified in so doing.

At the trial, after the first witness was sworn and had [336]commenced giving his testimony, the defendant objected to the admission of any testimony under the complaint; but no reason was stated why the testimony was not admissible, and the objection was overruled.

At the conclusion of the trial, findings were filed and judgment entered in favor of plaintiff. The defendant moved for a new trial, and his motion being denied, appealed from the judgment and order.

It is now claimed that the complaint did not state facts sufficient to constitute a cause of action, and that the court erred in admitting any testimony in support of it. Doubtless the complaint might have been improved in some respects, but in the absence of a demurrer, we think it sufficient and the ruling proper.

The court found that plaintiff had complied with the terms of the agreement made between him and defendant in November, 1879, and there was testimony tending to support the finding. It is argued, however, for the appellant, that the defendant had no interest in the land, and so the agreement, though executed by him, conferred no rights whatever on the plaintiff. Assuming this to be so, it becomes unnecessary to consider what rights the agreement would, if valid, have conferred upon the plaintiff, and the case may be decided upon the other facts presented by the record.

The other facts are as follows: In 1865 one Robert McCubbin and the plaintiff owned farms situate upon a stream known as the Arroyo Permanente, McCubbin’s farm being higher up the stream than the plaintiff’s. In that year, under an agreement made with other owners of land upon the stream, McCubbin and plaintiff went above their farms and constructed a dam across the stream, and by means of a flume and pipes, diverted its waters to their respective farms, to be there used for domestic and other purposes. The plaintiff paid one half of the expense of the dam and flume down to the point where McCubbin used the water, and all of the ex