Spargur v. Heard

Belcher, C. — This action was brought to obtain a perpetual injunction restraining the diversion of water, and for damages. The court below granted the injunction, but without damages. The appeal is from the judgment, and rests on the judgment roll.

1. It is claimed by appellants that their demurrer should have been sustained, but we think it was properly overruled. The complaint stated a cause of action, and it was not ambiguous, unintelligible, and uncertain. The plaintiffs were husband and wife, but a husband may be joined as plaintiff with his wife in an action which concerns her separate property. (Calderwood v. Pyser, 31 Cal. 333; Corcoran v. Doll, 32 Cal. 83.) Plaintiffs alleged that Mrs. Spargur and her grantors had owned, possessed, and occupied the lands described for the periods named, and that she was then the owner thereof; and they deraigned her title to the ditch and water right from the first appropriator. This was sufficient.

2. It is contended that the court did not find upon all the material issues raised by the pleadings. Under this head it is urged that there was no finding upon the issue tendered by plaintiffs’ averment “ that the defendants threaten and intend, and unless prevented by the injunction of this court they will continue, to divert and obstruct the waters of said stream and prevent the same from reaching the lands of said plaintiff, and wholly deprive her of the use of said water; that the damage to said plaintiff for each day she is deprived of the use of said water is five dollars,” etc. It is said that this aver[228]ment was denied in toto; but the only denial as to the first part of it was, that defendants threaten, or intend, or will continue to do the acts complained of, “ except as of right they are lawfully entitled thereto.” This was clearly not a denial in toto, and yet the court found “ that defendants, and each of them, threaten and intend, and unless restrained will continue, to divert the waters from said plaintiff’s ditch and thereby prevent any portion of the waters of said stream from flowing through said ditch to plaintiff's said lands.” The court was not required to go further, and find as to the alleged resulting damages, for the reason that it was not necessary to allege or prove such damages. (Moore v. Clear Lake Water Works, 68 Cal. 146.) The finding was therefore fully sufficient.

It is also urged that there was no finding as to the bar of the statute of limitations pleaded by defendants. But the court did find “ that plaintiff’s cause of action is not barred by section 318 of the Code of Civil Procedure, nor by section 343 of said code, nor by section 319 of said code, nor any of them.” The sections named are the only ones pleaded, and the claim that the finding should be disregarded because it is placed among the conclusions of law is without merit. (Burton v. Burton, 79 Cal. 490.)