Woo v. Martz

GIBSON, C. J. This is a companion case to Hails'v. Marts, ante, p. 775 [172 P.2d 52], this :day- decided.

In the present action plaintiffs who are lessees of R. H. Hails (plaintiff in the companion case) sought damages for injury to their crops caused by the alleged wrongful acts of defendants Martz in closing up-a ditch on their land through which surface waters had formerly been diverted frtim the lands leased by plaintiffs. Plaintiffs appeal from a judgment denying them relief and awarding damages against them under a cross-complaint which alleged that plaintiffs'had wrongfully diverted the surface waters onto defendants’lands." The facts underlying the litigation are more particularly set forth in the companion case.

The rights of the parties here involved are dependent on the question, discussed in the companion case, whether plaintiffs’ lessor is entitled to an easement by prescription to have the surface water diverted onto the lands of the defendants Martz. Inasmuch as the judgment in the companion case has been reversed for failure to find on this issue, the judgment herein must necessarily be reversed.

Judgment reversed.

Shenk, J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence, J., concurred.

Respondents’ petition for a rehearing was denied September 19,1946.