Lorenz v. Jacobs

McKEE, J. The assignments of error which have been argued upon this appeal are: (1) That the complaint does not contain facts sufficient to constitute a cause of action. (2) That the court erred in admitting in evidence, against defendants’ objections, the record of a former judgment.

1. The complaint is not artistically drawn; yet, in its verbiage, the following facts, although defectively and illogically stated, sufficiently appear, viz.: That, in 1882, the plaintiffs were the exclusive owners, by prior appropriation, of the right [297]to divert and use all the water of a stream called “Connor creek,” except a sluice-head of twenty inches, or “so much as will flow without pressure through an aperture ten inches in length and two inches in height,” and the surplus of the natural flow of the stream not appropriated by the plaintiffs; that “in the vicinity of Eed Hill, Trinity county, state of California,” the plaintiffs had constructed four ditches, which connected with and tapped the creek, by means of which they brought the water from the creek “to the mining ground in that locality,” for use in mining and other useful purposes; and that, while engaged in the exercise of their right, the defendants disturbed them in its enjoyment, by wrongfully diverting so much of the water of the creek in excess of the “sluice-head” to which they are first entitled as to materially diminish the quantity which the plaintiffs are entitled to have flow through their ditches to their mining ground for mining purposes; and this wrong the defendants threaten to continue, so as to deprive the plaintiffs of their right to the use of the water of said creek; therefore, the plaintiffs ask that the defendants be adjudged to pay damages for their wrongful acts in the past and be perpetually enjoined from continuing to commit them in the future.

It is urged that the complaint is fatally defective, because it contains no distinctive averments of the date of location, size, grade, or capacity to carry water of any of the plaintiffs ’ ditches; and because it contains no averment that “Connor creek” or any of the ditches are in the county of Trinity. But all these are only subordinate facts tending to prove the ultimate fact of the legal right in the subject matter of the action asserted by the plaintiffs. As subordinate facts they are not essential to the statement of the cause of action. When a state of facts is relied on to constitute a cause of action, it is sufficient to allege the facts simply without setting out the facts tending to prove them. If the facts stated are sufficient to constitute a cause of action, their sufficiency cannot be successfully assailed by a general demurrer for imperfect averments of the facts. Such errors in a pleading can be reached only by special demurrer. In the presence of a general demurrer a complaint is sufficient which shows that the plaintiffs have a clear legal right in the subject mat