Gould v. Stafford
Before: McFarland
Synopsis
Diversion of Water—Amendment of Answer—Change of Issues— Discretion of Court.—In an action by a lower riparian proprietor to restrain an upper riparian proprietor from diverting water from the stream, where the defendant averred in his original answer that as a riparian owner, and also by virtue of a prescriptive right, he was entitled to divert more water than his flume could carry, the court has discretion to allow the defendant to amend his answer by omitting the defense set out in the original answer, and averring that during the time of the alleged diversion a part of his riparian land was leased to tenants over whom he had no control; that if more water was diverted through the flume than the leased riparian land was entitled to the tenants alone were liable for the diversion.
Id.—Amendments to be Liberally Allowed.—The courts should be liberal in allowing amendments to pleadings when they do not seriously impair the rights of the opposite party; and this rule is particularly applicable to amendments to an answer.
Id.—Mistake of Law Immaterial. —The power of a court to allow amendment is not limited by the character of the mistake which calls forth its exercise; and the fact that the proposed amendment is based mainly upon a mistake of law is immaterial.
Id.—Law of Case—Change of Pleadings.—The decision of this court upon a former appeal that diversions by third parties constitute no defense under the pleadings as they then stood is not the law of the case, so as to debar the defendant from proving the acts of his tenants upon the second trial under an amended answer setting up that the water was not diverted by himself, but by his tenants, for whose acts he was not responsible.
Id.—Diversion of Water by Lessees of Riparian Land—Owner Not Liable.—An owner of riparian land who has leased the land to tenants for a term of years, giving them the exclusive possession and control of the premises, and of the flume by which the water of the stream could be carried to the leased land, which they were bound to keep in repair, is not responsible for a wrongful diversion of a greater quantity of water by the tenants than they were entitled to divert, if he did not participate in any manner in such diversion, and was not notified of any wrongful diversion, nor requested to abate the nuisance.
McFarland, J. This action was brought by plaintiff, who is a lower riparian proprietor on a stream, to restrain the defendant, who is an upper riparian proprietor on the same stream, from diverting water therefrom. Judgment went for defendant, and plaintiff appeals.
The case has been here twice before, 77 Cal. 66; 91 Cal. 146. On the first appeal a judgment in favor of defendant was reversed on account of defective finding; and it was said in the opinion that under the pleadings, as they then stood, evidence of diversions of water by third persons would be admissible only as to the amount of damages (which were waived by plaintiff); and that findings as to the acts of certain Chinamen and others were irrelevant and against the admissions of the answer. Certain principles as to riparian rights were also stated for the guidance of the court on another trial. When the case went down to the trial court defendant asked leave to file a certain amended answer, to which the plaintiff objected; the court allowed it to be filed; and plaintiff excepted—preserving his exception in a bill of exceptions. But on the second trial judgment was rendered for plaintiff; so that the objection to the amended answer was not presented to this court on the second appeal. Upon the second appeal the judgment for plaintiff was reversed, mostly upon points which do not arise on the present appeal. When the case went down the second time plaintiff—in addition to the exception which he had preserved as before stated—moved the court to strike out the said amended answer; and his motion having been denied he again excepted.
The point most elaborately argued by appellant is that the court erred in permitting respondent to file his amended answer.
It appears that the alleged wrongful diversion was made through a small flume into which the water was turned from time to time by temporary obstructions, or dams, across the stream. In the original answer it was averred, among other things, that defendant as a riparian owner, and also by virtue of a prescriptive right, [34]was entitled to divert more water than said flume could carry; and he thus justified the diversion. In the amended answer he omitted the defense just stated, and averred that during the time of the alleged diversion a part of his riparian land was leased to certain tenants over whom he had no control; and that if during said time more water was diverted through said flume than said leased riparian land was entitled to, said tenants alone are liable therefor to plaintiff. And it is to this difference between the two answers that plaintiff mainly objects.
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