Clark v. Yocum

Garoutte, J. This is an action to recover damages for the failure to convey certain water and water rights, and also to recover damages claimed on account of the defendants entering upon the premises of the plaintiffs, and shutting certain water off from plaintiffs’ land. Plaintiffs bought a certain tract of land and also certain water rights and privileges from defendants, and paid therefor the lump sum of four thousand four hundred dollars. Defendants conveyed the land to plaintiffs, but refused to convey the water rights, and judgment for damages in the sum of two thousand dollars was awarded against them for such breach of the contract. From that judgment, and also from an order denying a new trial, this appeal is prosecuted.

Defendants set forth three grounds upon which they rely for a reversal of the judgment and a new trial: 1. That the court erred in overruling defendant’s demurrer to the complaint; 2. That the complaint does not state facts sufficient to constitute a cause of action; 3. That the evidence was insufficient to justify any judgment for the plaintiffs.

If it be conceded that the court committed an error in overruling the demurrer to the complaint, which demurrer raised the question as to the misjoinder of causes [517]of action, still the error resulted in no injury; for at the trial by an express order the court limited the evidence to the single question of the breach of the contract in not making a conveyance of the water rights, and the cause was tried upon those lines alone. For this reason, if there was error, it became harmless by the subsequent action of the court.

It is claimed that the complaint failed to state a cause of action in not alleging the amount of money paid for the water rights. Section 3306 of the Civil Code provides: "The detriment caused by the breach of an agreement to convey an estate in real property is deemed to be the price paid and the expenses properly incurred in examining the title and preparing the necessary papers, with interest thereon; but adding thereto in case of bad faith the difference between the price agreed to be paid and the value of the estate agreed to be conveyed at the time of the breach and the expenses properly incurred in preparing to enter upon the land.” In view of the fact that the land and water rights were purchased for a lump sum, the proportion of" that sum paid for the water rights could not be segregated, and therefore no allegation as to such amount could be made; but there is an allegation found in the complaint that at the time the conveyance was demanded the value of the water rights was two thousand dollars. And this allegation completes the statement of a cause of action.