Burris v. People's Ditch Co.
Before: Belcher, Fitzgerald, Fleet, Harrison, Haynes, Temple
Synopsis
Appeal from a judgment of the Superior Court of Tulare County.
The facts are stated in the opinion.
The extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired. (Civ. Code, sec. 806; Angelí on Watercourses, 7th ed., sec. 224.) An easement like the one in question cannot he enlarged, varied, or changed without the consent of the person whose property is affected by the easement. (Angelí on Watercourses, 7th ed., sec. 224; Cotton v. Pocasset Mfg. Co., 13 Met. 429; Davenport v. Lamson, 21 Pick. 72; Tot el v. Bonnefoy, 123 Ill. 653; 5 Am. St. Rep. 570; Boynton v. Longley, 19 Nev. 69; 3 Am. St. Rep. 781; Onthank v. Lake Shore etc. B..R. Co., 71 N. Y. 194; 27 Am. Rep. 35; Hodgkins v. Farrington, 150 Mass. 19; 15 Am. St. Rep. 168; Allen v. San Jose etc. Water Co., 92 Cal. 138.) Plaintiff was clearly entitled to a mandatory injunction to compel the defendant to restore the ditch to its original condition before it was deepened by the defendants, and the trouble and inconvenience the defendant may be put to in so doing should not he considered. (Wood on Nuisances, 2d ed., secs. 778, note 2, 779; Learned v. Castle, 78 Cal. 461; Clowes v. Staffordshire Pottery Co., L. R. 8 Ch. 125; Cole S.M. Co.v. Virginia etc. Water Co., 1 Saw. 470, cited in Angelí on Watercourses, 7th ed., sec. 448; Schwoerer v. Boylston Market Assn., 99 Mass. 286; Corning v. Troy Iron and Nail Factory, 40 N. Y. 191.) The denials in the answer as to the widening and deepening of the ditch were insufficient to raise any issue thereon. (Doll v. Good, 38 Cal. 287; Gulf of California Nav. Co. v. State Investment etc. Co., 70 Cal. 587; Camden v. Mullen, 29 Cal. 564; Huston v. T. & G. etc. Co., 45 Cal. 550; Higgins v. Wortell, 18 Cal. 331.) There is no necessity for finding facts which are admitted by the pleadings. (Swift y. Muygridge, 8 Cal. 445; Taylor y. Central Pac. R. B. Co., 67 Cal. 615.) Findings which are contrary to the facts admitted in the pleadings are to be disregarded, for a defendant cannot on the trial controvert a fact admitted by the pleadings. (Patterson v. Sharp, 41 Cal. 133; Bradbury v. Cronise, 46 Cal. 287; Jones y. Spears, 47 Cal. 20; Hill v. Den, 54 Cal. 20; White v. Douglass, 71 Cal. 115; Joshua Hendy Machine Works v. Pacific Cable etc. Co., 99 Cal. 421.)
If plaintiff has sustained any damage an action at law would afford ample compensation, and an injunction should not therefore be granted. (Waldron y. Marsh, 5 Cal. 119; Leach v. Day, 27 Cal. 643; Mechanics’ Foundry v. Ryall, 62 Cal. 418; 75 Cal. 601; Gould on Waters, secs. 508-10; Jerome v. Ross, 7 Johns. Ch. 315; 11 Am. Dec. 484; Thorn v. Sweeney, 12 Nev. 251; Hoye v. Sweet-man, 19 Nev. 376; Smith v. Gardner, 12 Or. 221; 53 Am. Pep. 344; Lorenz v. Waldron, 96 Cal. 243, 249.) The burden of defendant’s easement was not increased, and therefore an injunction was properly denied. (Durfee v. Garvey, 78 Cal. 551; Angelí on Watercourses, sec. 226; 2 Washburn on Peal Property, 84; Herman v. Roberts, 119 N. Y. 37; 16 Am. St. Pep. 801; Hall v. Rood, 40 Mich. 46; 29 Am. Pep. 528; Allen v. San Jose L. & W. Co., 92 Cal. 138.)
HayNES, C. The defendant is the owner of a canal or ditch used to convey water from Kings river for the [251]purpose of irrigation. This ditch was constructed in 1875, is about twenty miles long, and in its course crosses two sections of land owned by the plaintiff.
The complaint charges that in December, 1887, the defendant widened and deepened the ditch upon plaintiff’s lands, and prays for a mandatory injunction to compel the defendant to restore the ditch to its former condition.
The defendant answered, and the issues were tried by the court, and upon the findings made judgment was entered for the defendant. This appeal is by the plaintiff upon the judgment-roll.
The court found that when said ditch was constructed across section 14 it had a width on the bottom of about twenty-five feet, was a little wider at the top, and was about six feet in depth from the surface of the ground, and from the top of the embankment about ten feet; that on section 26 the ditch was about thirty feet wide on the bottom, was about two feet in depth below the surface of the ground, and from the top of the embankments its depth was about four feet, and that said ditch is no wider now than when first constructed, and is not any deeper except as hereinafter stated. That in December, 1887, the defendant, against the protest of the plaintiff, entered upon said ditch to clean out the same, and increased the depth of it for a distance of one hundred and forty yards in section 14 of plaintiff’s lands from one foot to seventeen inches, and on section 26 deepened it from one foot at the upper end of a “ one hundred and seventy yard stretch, tapering down to nothing at the lower end of said stretch”; that said portions of the ditch were deepened to reduce the ditch to an even and uniform grade, “ said portions having theretofore been looked upon as humps in the bottom of the ditch,” but that no more water is conveyed through the ditch than before.
The court further found that plaintiff’s lands were not thereby damaged, nor the burden increased, nor the plaintiff obstructed in the free use of any of his lands, [252]or prevented from the comfortable enjoyment of any thereof, or that he suffered any pecuniary loss or damage.
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