Heilbron v. Kings River and Fresno Canal Co.

The Court. —Many of the question involved in this appeal have recently been determined adversely to the contentions of appellate herein. It is therefore unnecessary to notice them further. (Heilbron v. Fowler Switch Canal Co., 75 Cal. 426; Heilbron v. Last Chance Water Ditch Co., 75 Cal. 117; Heilbron v. Centerville and Kingsburg Irrigation Ditch Co., ante, p. 8.)

1. The defendant’s motion for leave to file an amended answer was addressed to the sound discretion of the court, and it appears from the affidavit filed in support of the motion that the matters set out in the amended answer were not substantially different from those which had already been pleaded in the answer on file. The court denied the motion, on the ground “that said matters of amendment are sufficiently pleaded in the original answer to the amended complaint.” We think, therefore, that the court did not abuse its discretion in refusing to allow it to be filed. The defendant seems to have been given the benefit of the matters alleged in his original answer and proposed amendments.

2. The demurrer to the cross-complaint—so called— was properly sustained. The cross-complaint contained nothing which had not already been set out in the answer filed. Furthermore, the action is one for tort, and no affirmative relief could be granted. (McDougall v. Maguire, 35 Cal. 274.)

3. No specifications of the insufficiency of the evidence to support the first, second, third, fourth, fifth, or sixth finding of fact are made in the statement on motion for a new trial. The facts therein stated, therefore, cannot be controverted.

4. The findings of the court upon the question of adverse use are against the defendant on every element necessary to a title by prescription, and are, we think, [16]supported by the evidence. The question is not whether this court would, upon the same evidence, find the facts as they are found by the court below. It is sufficient to say that there is a substantial conflict. There is nothing to show that Clark or his tenants had knowledge or notice of the diversion of water through defendant’s ditch. The most that can be said is, that the evidence, taking into consideration all presumptions, is conflicting upon that question. Diversion of water by the defendant took place at a point nearly thirty miles above the lands of plaintiffs’ ranch, on the land of a riparian proprietor. It was not incumbent upon Clark or his tenants to take notice of what was going on at that distance above their property, to ascertain whether' any one was diverting water from the channel of the river. There is evidence in the record tending to show that the diversion of water from Kings River was a matter of notoriety in the vicinity of plaintiffs’ ranch prior to August, 1877, but it is confined to diversions made by other ditches than that of the defendant. There was also evidence tending to show that the diversion of water by the defendant had not been continuous and. uninterrupted for five years before the commencement of this action. The court found such to be the fact. Upon this topic there was also a substantial conflict in the evidence.