Dewey v. Superior Court

Fox, J. This is a proceeding by writ of review to re-examine, vacate, and set aside an order of the superior court of the county of Merced, made after judgment,' and in proceedings for contempt for violation of a judgment for injunction.

The facts, as stated in the petition and appearing from the return, are, that in a certain suit pending in said court, wherein one Turner was plaintiff and Dewey, the petitioner here, was defendant, a judgment was made and given enjoining the defendant from maintaining a certain dam or other' obstructions in Mariposa Creek, and from maintaining a certain ditch or canal of defendant in any condition that would interfere with the rights of plaintiff, as in the said judgment and in the findings and conclusions of the court set forth; it being thereinbefore set forth that the plaintiff had the right to all the waters flowing in the Mariposa Creek, without interruption by the defendant, down the bed, along the natural water channel of said creek, except at such times as there may be a surplus of water running in said creek. The judgment also awarded the plaintiff one thousand dollars damages. -

From this judgment an appeal was perfected to this court, and the statutory stay bond for the money judgment and bond for costs duly given. After the perfection of such appeal, proceedings were instituted in the sainé case, and in the manner prescribed by the statute, to punish the defendant for violation of such injunction; the defendant was duly cited to appear and show cause, etc., and upon the lieáring the defendant was adjudged guilty of contempt, and was fined in the sum of $150, and it was also ordered that he be committed to the custody of the sheriff of Merced County, anil confined in the county jail until all dams and-obstructions placed in said Mariposa Creek by him, or through his procurement, which would obstruct.the flow of the water therein, [66]be dug out and removed therefrom, and until the ditch leading from said creek be filled up substantially so that the waters of said creek' cannot be diverted thereby.

It is contended that this order requires of the defendant, petitioner here, things which were not required by the- original' judgment, imposes on him obligations not imposed thereby, and punishes him for the non-performance of duties which the judgment did not require him to perform.

The court clearly had jurisdiction of the proceedings for contempt, and upon the hearing of that proceeding it appears that evidence was taken, upon which the court found, among other things, that the defendant had, in violation of said injunction, “diverted and permitted the waters of said creek to be diverted from said creek, and from the lands of plaintiff, and deprived the plaintiff .... of the use thereof.” The evidence upon which such finding is based is not sent up. The finding itself is within the issues and the jurisdiction of the court, and its judgment of conviction thereon rendered is final and conclusive. (Code Civ.Proc., sec. 1222.)