Chaffey v. Dexter

SHARPSTEIN, J. The plaintiffs, George and William B. Chaffey and the Pomona Land & Water Company, brought an action against the defendant for the diversion of a large portion of the water of San Antonio creek, which flows over the plaintiffs’ lands. The defendant denied the material allegations of the complaint, and alleged that he was the owner [398]of the exclusive right to use and control forty inches, measured under a four-inch pressure, of the water of said stream for the purpose of irrigation, etc. The answer was filed on the 15th of October, 1883. On the 12th of February, 1884, a judgment was entered in accordance with a written stipulation of the attorneys of the several parties, by which it was adjudged and decreed that the plaintiffs were entitled to the use and control of all the water flowing in said creek, with the exception of twenty inches, measured under a four-inch pressure, which the defendant was entitled to use and control. On the 28th of March, 1884, plaintiffs’ attorney gave defendant’s attorney notice that the plaintiffs would move the court that said stipulation, and said judgment entered in pursuance thereof, be set aside, “on the ground that the said stipulation was made under mistake, inadvertence, and excusable neglect of attorney of plaintiffs, IT. M. Willis, and without any authority on his part, and upon representations upon which he relied, made by one Touner, attorney for the Pomona Land & Water Company, one of the plaintiffs”; and that the motion would be made on the papers in the case and upon affidavits.

By the affidavit of Mr. Willis it appears that, at some time intermediate the date of the commencement of the action and the entry of the judgment, he had a conversation with the plaintiff George Chaffey, Jr., in regard to a compromise of the action on the terms as he (Willis) understood, expressed in the stipulation which he subsequently entered into with the defendant’s attorney. We refer to the following clause in said affidavit:

“That in a previous conversation with his client, George Chaffey, Jr., the proposition of allowing twenty inches of water to defendant was discussed between them, but deponent did not understand his client in the "way said client, as he now informs him, intended to be understood, to wit, that they were willing to allow, as a compromise, the defendant to have the amount of a certain box or flume leading from said creek mentioned in the pleadings to defendant’s farm—said box or flume containing about twenty inches of water—to be used by him (defendant) on his land exclusively adjacent to said stream, at stated periods, about once a week; that the deponent had no authority, in writing or verbal, from his