Barfield v. South Side Irrigation Co.

Garoutte, J.—Plaintiff brought an action to cancel a deed given by her to defendant for a right of way for a water ditch, upon the ground of false representations and failure of consideration, and the answer specifically denied all the allegations of the complaint. At the trial it was stipulated in open court that the parties [119]intended the deed to transfer a mere right of way for ditch purposes, although the deed in form was a grant.

At the conclusion of plaintiff’s evidence a nonsuit iras granted as to the relief asked in setting aside and canceling the deed, and a decree was also entered that the deed be reformed in accordance with the aforesaid stipulation. That portion of the judgment as to the matters covered by the nonsuit is appealed from, upon a bill of exceptions.

It is insisted upon the part of respondent that the bill of exceptions cannot be considered, because no specifications of errors of law are embodied therein. Miller v. Wade, 87 Cal. 410, is relied upon to support this position. But the doctrine there declared failed to receive the sanction of a majority of the court, and therefore is not authority. Upon an examination of the authorities there cited to support the principle announced in that case, it will be found that they fail to meet the test. And Shadburne v. Daily, 76 Cal. 855, declares to the contrary that no errors of law need be specified in the bill of exceptions.

The motion for a nonsuit was made generally, and also specially, upon the ground that defendant made no representations to plaintiff as to the ownership by it of the waters of Lower Kings River Ditch Company sufficient to irrigate about seven thousand and forty acres of land, or that it owned or controlled any amount of water sufficient to irrigate any portion of said land. The motion for a nonsuit was also based upon the further ground “that the plaintiff has not shown that the defendant agreed to construct a ditch through the land in question in such a manner, and upon such routes, and in such localities as to enable the plaintiff in the easiest and most practicable manner, or to the best advantage, to irrigate all of said sections of land from the waters flowing in and through said ditch.” Among other things, the complaint alleged that defendant represented itself to be the owner of certain walers of Lower Kings River Ditch Company, upon which repre[120]