Wixon v. Devine

Garoutte, J. This is an action to determine the rights of the parties to the waters of Kentucky Ravine and its east and west branches, located in Sierra County, California.

The court adjudged the plaintiff to be entitled to twenty-five inches of the waters of said ravine under a four-inch pressure. Defendant appeals from the judgment and order denying his motion for a new trial, and for grounds of reversal insists,—1. That certain evidence offered was improperly rejected; 2. The court erred in refusing to allow the defendant to amend his answer during the progress or the trial. Plaintiff claimed title to these waters by actual appropriation in 1883. Defendant claimed no affirmative relief in his answer, but, for the purpose of defeating plaintiff’s right, setup a [481]prior appropriation, of these waters by himself in 1877, and he also relied upon an adverse user for a period of more than six years before the commencement of this action.

During the progress of the trial, while the defendant was presenting his evidence to the court, he offered to prove “a prior actual appropriation and diversion of all the waters of Kentucky Ravine in the year 1865 by James Galloway; that he was the original claimant and possessor of the land described in the answer as the Doyle ranch, and that it was then known as the Galloway ranch; that said appropriation and diversion was made at a point above plaintiff’s dam and ditch; that said waters, by actual use and enjoyment, were made an appurtenance to said ranch, and passed with the ranch by mesne conveyances to defendant,” etc. An objection was sustained to the admission of the foregoing testimony, upon the ground that it was not within the issues made by the answer. Appellant insists that he was entitled to make such proof under the general issue. If his answer had contained a specific denial of plaintiff’s right to the waters of the ravine, we are not prepared to say but that under the following authorities he would have been entitled to make the proof sought by virtue of such denial. (Marshall v. Shafter, 32 Cal. 192; Bruck v. Tucker, 42 Cal. 346; Daniels v. Henderson, 49 Cal. 247; Roberts v. Columbet, 63 Cal. 25; Hyde v. Mangan, 88 Cal. 325, and cases there cited.) But the record upon this appeal does not present the question to us for consideration. There is no specific denial of any material allegation of the complaint. The answer raises no “ general issue ” within the meaning of the statute and authorities. In his answer, defendant denies plaintiff’s right to these waters, “ except as hereinafter expressly stated.” Again, he admits plaintiff’s right, “ subject to the prior right of defendant,” specially referring to his right under acts of appropriation in 1877. In short, the answer confesses plaintiff’s right, but seeks to avoid it by asserting a particular prior right