Dedmon v. Moffitt

The Court. The plaintiffs, claiming to have acquired by prior appropriation the waters of Adam’s Creek and its tributaries in Sierra County, commenced this action against the defendants to recover damages for a diversion of said water, and to restrain them from further diverting the same. The case was tried by the court, and judgment rendered in favor of the plaintiffs, against the defendant Goble, and in favor of the other defendants. The findings are very elaborate and carefully prepared, and appear to give a history of the appropriation of the waters in question by the several parties to the action and their predecessors in interest for a period of twenty years. The plaintiffs moved for a new trial, upon a statement of the case, upon the ground of the insufficiency of the evidence to justify the findings, and that the same are against law, and assign as a particular error that the evidence was insufficient to justify the eighteenth finding of fact.

[213]It is a sufficient answer to this assignment of error that the finding itself is not upon a material issue in the case, and that the judgment does not depend upon this finding. Irrespective of this, however, the evidence of Horton and Moffitt, found in the statement, tends to support the finding, and in the absence of direct evidence to the contrary, was sufficient to justify the court therein.

Appellants ask a reversal of the judgment for the reason that the court has failed to make findings upon certain material issues in the case. A judgment will not, however, be reversed merely for the failure of the court below to make findings upon any issue presented in the case, unless it shall be made to appear to this court that there was evidence presented to that court upon such issue sufficient to authorize it to make a finding thereon. It must also appear that the issue upon which the evidence was given was of such a nature that the finding which the appellant claims should have been made would have the effect to countervail other findings in the record to such an extent that the judgment thereon should be invalid. (Himmelman v. Henry, 84 Cal. 104; Winslow v. Gofransen, 88 Cal. 450.)

It appears from the evidence set out in the statement that the south ditch of the plaintiffs was deprived of water during a portion of the irrigating season of 1887, and that the plaintiffs were not able to irrigate as much of their land during that season as they had been accustomed to irrigate in previous seasons. The court found that whatever diversion of the water was made by the defendants, other than the defendant Goble, was rightfully made by them. It also found that during the greater portion of the period covered by the complaint the defendant Goble diverted through his northwest ditch a quantity of water from the creek greater in amount than would have been sufficient to fill all of the plaintiffs’ ditches; and as such diversion was in viola