Foreman v. Boyle

Garoutte, J. This is an action for damages for diverting the waters of plaintiffs, and for an injunction to restrain the defendants from the further diversion thereof.

Among other things, the complaint, in effect, alleges that” the west branch of Cañón Creek and Cañón Creek were natural watercourses, the waters of the former flowing into the latter; that the plaintiff Foreman owns a tract of land situated upon the west branch of Cañón Creek, and also fifteen inches of the waters of said creek for the purpose of irrigating her said tract of land; that the plaintiff Rogers owns a tract of land situated upon Cañón Creek, and also thirty-five inches of the waters of said creek for the purpose of irrigating his said tract of land; that plaintiffs, by means of ditches erected by them respectively, carried said waters from the aforesaid creeks over and upon their tracts of land; that the defendants, at a point above the lands of plaintiffs, diverted the said waters from their natural [292]channel, depriving said owners thereof, and by such diversion plaintiffs suffered damages in the sum of one thousand dollars.

A demurrer to the complaint was filed, upon the ground that there was a misjoinder of parties plaintiff and a misjoinder of causes of action. The demurrer was overruled; issue was joined, and upon the trial the findings of the court were in consonance with plaintiffs’ complaint, except as to the allegation of damages, and as to that allegation the court found that the plaintiffs had suffered damage in the sum of five dollars.

The case comes before us upon the judgment roll.

It will be observed that the plaintiff Foreman owns a tract of land, fifteen inches of water, and the ditch which carries the water from West Canon Creek upon her land. Her co-plaintiff, Rogers, has no interest whatever in the land, the water, or the ditch. Likewise, plaintiff Rogers owns a tract of land (some distance from Foreman's land), thirty-five inches of water, and the ditch which carries the water from - Canon Creek upon his land; and his co-plaintiff has no interest in such land, water, or ditch.

These plaintiffs claimed in their complaint, and obtained by decree of the court, a joint judgment for 'damages against the defendants.

It is impossible to see how-the plaintiffs have any joint or common interest in the damages recovered, or upon what legal basis such damages could be apportioned between them. Respondents’ counsel suggest that the plaintiffs are tenants in common, and the damages should be apportioned in proportion to the number of inches of water each owns. This cannot be the true rule, for it readily can be seen that for many reasons the diversion of the waters by defendants may have caused plaintiff owning fifteen inches of water far greater damage than would have been entailed upon plaintiff owning thirty-five inches of water.