Evans v. Ross

THORNTON, J. This is an action to recover damages for the obstruction, diversion, and use of the water of a stream, and for an injunction restraining defendants from continuing such obstruction, diversion, and use. The court below, on the trial, submitted a number of special issues to a jury, which were answered by it. Before the jury retired, counsel for plaintiff demanded of the court that the jury be allowed to bring in a general verdict, in addition to the verdict on the special issues submitted. This the court refused, and plaintiff excepted.

The court did not err in refusing the demand of plaintiff. The case is one in equity. This was so held in Courtwright v. Bear River etc. Min. Co., 30 Cal. 576, Yolo Co. v. Sacramento, 36 Cal. 193, and Learned v. Castle, 67 Cal. 41, 7 Pac. 34. In Yolo Co. v. Sacramento, the court used this language: “But we do not consider that the abatement of a nuisance, and the recovery of damages therefor, are distinct causes of action in the sense of the rule invoked by the demurrer. The nuisance is the cause of action. The abatement and damages therefor are merely different kinds of relief to which the plaintiff may be entitled.”

In the case under consideration, the prayer is for an’ injunction enjoining and prohibiting the defendants, etc., from in any way obstructing or diverting the waters of said creek, etc. The prayer is not in so many words for removing and abating a nuisance, but equivalent words are used. Under such a prayer, a mandatory injunction could be granted for abating the obstruction of the water by a removal of it. With this form of prayer we hold it to be an action for abating a nuisance; and that the diversion of a watercourse is a nuisance was held in Tuolumne W. Co. v. Chapman, 8 Cal. 392. See, also, Parke v. Kilham, 8 Cal. 77, 68 Am. Dec. 310. It is well settled that a party is not entitled to jury in an equity case. It is in the discretion of the court in such a ease to call a jury. When a jury is called, the court directs proper issues to be framed and submitted to it. The verdict on [545]these issues is only advisory to the court, and it may adopt the findings of the jury; or reject them and itself find the facts: Warring v. Freear, 64 Cal. 56, 28 Pac. 115. A general verdict is insufficient and should he disregarded: Brandt v. Wheaton, 52 Cal. 430.

By reason of what is said above, the court did not err in its ruling as to a general verdict. It also follows from what is said above that the court did not err in setting aside the verdict of the jury and finding the facts itself. Neither did it err in denying plaintiff’s motion for judgment on the verdict. The findings sustain the judgment in favor of defendant Ross. The twenty-third finding is as follows: “That since the year 1862, until the commencement of this action, defendant Ross has continuously and uninterruptedly, during the irrigating season of each year, so long as there was sufficient water in the creek, diverted and used the said water of said creek, to the extent of one hundred and forty-nine inches measured under a four-inch pressure, through the dams and ditches heretofore described, on the west side of said creek; that he has used the same for irrigating his said lands as before described, claiming all the time the right to do so as against the whole world; that such diversions, use, and claim of right have been with the full knowledge of plaintiff and his grantors. I find, also, that Ross’ use of water has been adverse and hostile to plaintiff, and an injury to plaintiff. I find further that plaintiff and his grantors have never allowed five days to elapse without protesting and objecting to .the same.”