Bennett v. Morris

BELCHER, C. This is an action to restrain the diversion of water, and for damages. By the judgment the plaintiffs were awarded an injunction and damages in the sum of $250. The defendants appeal from the judgment and an order denying their motion for a new trial. In support of the appeal it is claimed that several errors of law were committed which call for a reversal. These alleged errors will be noticed in their order.

1. The demurrer to the first cause of action set up in the complaint was general, and it was not error to overrule it. The words objected to, as showing that no cause of action was stated, must be read in connection with the balance of the count; and, when so read, the most that can be said is that they make the pleading ambiguous and uncertain. But that is an objection that cannot be raised by a general demurrer.

2. The plaintiffs offered and were permitted to read in evidence the record of the deed from Timothy Haley to Andrew Bahr, dated October 18, 1872, and also the conveyance indorsed thereon from Bahr to George McNeal, dated February 14, 1873. The Haley deed appears to have been signed by the grantor’s mark, and witnessed as required by section 14 of the Civil Code, and it was proved that diligent search had been made for the original papers, and that they could not be found; that the copies found in the record were substantially [836]correct; and that under the said deeds the grantee, McNeal, entered into possession of the property, and held such possession until he transferred it to other parties in June, 1878. For the purposes for which the plaintiffs sought to use these deeds, it was therefore immaterial whether they were properly recorded or not. And it was also immaterial that it did not appear that any United States revenue stamp was placed thereon: Duffy v. Hobson, 40 Cal. 240, 6 Am. Rep. 617; Thomasson v. Wood, 42 Cal. 416.

3. The point is made in appellants’ brief that the court erred in admitting in evidence the deed from George McNeal to E. L. Shumway and brother, but no argument is made in support of this position. The point is clearly untenable. McNeal testified to buying the property from Bahr, and that he remained in possession of it and used the ditch and water every mining season up to 1878, when he deeded the property to the Shumways; and Edwin L. Shumway testified that he and his brother got the property from McNeal, and remained in possession of it jointly for twelve years, when they conveyed it to the plaintiffs. The deed was therefore clearly admissible, in connection with the other proofs offered, to show that the plaintiffs and their predecessors in interest had been in possession of the property in question, and claimed to own it, for more than twenty years before the action was commenced.