Mott v. Ewing

Foote, C. — This is an action to restrain, by injunction, the diversion from the plaintiff’s lands, by the defendants, of the waters of a certain natural stream, the flow of which over and across her lands as a riparian proprietor, as also the beneficial use thereof for irrigation purposes as a prior appropriator, are claimed by the plaintiff through superior right..

The defendants separately demurred to the complaint; their demurrers were overruled; they then answered at great length. A trial being had, judgment was rendered for the plaintiff, from which this appeal is taken on the judgment roll.

There are two main grounds upon which the defendants rely for a reversal of the judgment, as appears by their reply brief: 1. That the court has failed to find upon all the material issues raised by the pleadings; 2. That the findings, as made, do not support the judgment.

Under the first head, they assert that the amended ' complaint alleges, among other things, “and that plaintiff’s rights as such riparian owner were acquired long prior, and are superior to any right or claim of right of the defendants, or either of them, to the waters of said stream; that if said defendants continue, as by them and each of them threatened and intended, to obstruct and divert the waters of Powley Creek, and to deprive plaintiff of the use thereof, the damage to plaintiff will be great, continuing, and irreparable, and pecuniary [235]compensation therefor will not afford adequate relief for plaintiff’s loss, damage, and injury; and that if said defendants do so continue in such diversion of said waters from said ditch as by said defendants threatened and intended, the same will result in the destruction of the fertility and value of said lands, and in great continuing and irreparable damage to plaintiff, and pecuniary compensation therefor will not afford adequate relief for plaintiff’s loss, damage, and injury.”

They say that as these allegations were specially denied in the answer, and were “ the gist of the plaintiff’s cause of action for injunction,” it “ being in equity for an injunction only,” there should have been findings upon the issues as raised; and that there were no such findings.

It has been said by the appellate court: “ It is not necessary that the facts found should follow the pleadings which they support. If the truth or falsity of each material allegation not admitted can be demonstrated from the findings, the requirements of the code are met.” (Clary v. Hazlitt, 67 Cal. 289.)