Churchill v. Baumann

The Court. Upon a reconsideration of the questions involved in this appeal we are satisfied with the conclusion reached by Department One in its opinion filed herein March 10, 1894, and for the reasons stated in that opinion the order appealed from must be affirmed.

Order affirmed.

Beatty, C. J., dissenting. — I dissent. Under our practice I think a plaintiff may couple an application for an injunction to restrain future trespass with an action for damages for past trespasses of the same character, and that notwithstanding his prayer for equitable relief he is entitled to a jury trial of the issues involved in his action for damages.

The following is the opinion of Department One above referred to:

The Court. Action to enjoin the defendants, perpetually, from diverting water from a stream called “ Pine creek,” by means of a dam across the same and a ditch leading therefrom, alleged to have been wrongfully constructed and maintained by the defendants; and also to abate the dam as a nuisance, and to recover damages alleged to have been suffered by plaintiff in consequence of such diversion of water during the years 1887 and 1888.

The case was here on a former appeal from the judgment, on the judgment-roll. On that appeal the judgment was affirmed, on the ground that the trial court found as a fact that the plaintiff had consented to all the acts complained of. (Churchill v. Baumann, 95 Cal. 541.)

The present appeal is from an order denying plain-, tiff’s motion for a new trial; and, in view of the judgment on the former appeal, raises only two questions which need be considered, namely: 1. Is the finding of plaintiff’s consent to the acts complained of justified by the evidence? 2. Did the court err in refusing a trial by jury?

[3711]. The evidence, without conflict, shows that in October, 1885, the plaintiff purchased an undivided share of the dam and ditch which entitled him to the use of one--eleventh, part of the water thereby diverted, and that he has owned the same ever since; that in May, 1887, he assisted the defendants in their work of repairing and tightening the dam so that it would divert five hundred and fifty inches of water, the largest quantity shown to have been diverted; that in the years 1886 and 1887 he used his proportion of the water diverted, or such part of it as he needed, to irrigate his land purchased with his interest in the ditch; that he had notice of the original construction of the dam and ditch, and of the diversion of the water thereby ever afterwards, and acquiesced therein without objection until he commenced this action. Surely this evidence strongly tends to prove that he consented to the acts in which he participated for his own benefit, and, in the absence of conflicting evidence, was amply sufficient to justify the finding that he did consent.