Hoyt v. Hart

The plaintiff prosecutes two separate appeals, one from the judgment, and one from an order denying a motion for new trial. Both may be considered in a single opinion.

The plaintiff and the defendant are owners of adjoining tracts of agricultural land in Siskiyou County, plaintiff’s holding lying to the west of defendant’s. On the easterly side of the defendant’s land there runs an irrigating ditch, variously designated in the record as the “Miller, Hoyt and Casedy Ditch” and as the “Burgess Ditch,” and each of the parties claims an interest in a portion of the waters flowing through it. The complaint alleges that the plaintiff is the owner of two hundred inches, measured under a four-inch pressure, of the waters flowing through such ditch, which is stated to have a capacity of eight hundred inches. It is alleged that for forty years the plaintiff and her predecessors have conducted their share of the waters of the Burgess ditch over the lands of the defendant through a certain ditch and waterway, the course of which is described, and that they have so conducted such waters continuously, adversely, and under a claim of right. The complaint further sets forth that in May and June, 1903, while the plaintiff was on defendant’s land, cleaning out the ditches and waterways connecting with her land, the defendant drove off her workmen and filled up the ditches, to her damage in the sum of two thousand dollars. The prayer is for judgment for the damage sustained, and for an injunction

The answer denies that the Burgess ditch is capable of carrying more than six hundred inches of water, denies that plaintiff is the owner of two hundred inches of the water carried in it, and alleges that the Burgess ditch does not carry a steady and uniform flow of water, and that its owners are entitled not to a definite or fixed amount measured in inches, but only to a certain proportion of the water flowing in said ditch, the plaintiff’s share being one eighth of such water. It is alleged that the defendant owns five eighths of the water flowing through the Burgess ditch, and that he has an interest in the other two eighths, subject to the right of C. Henry Haight to first use them for irrigating his lands. The answer denies that ■plaintiff has received her share of the water through any defined channel or watercourse across his lands, but asserts that he, the defendant, has used certain ditches to spread water from the Burgess ditch over his own property, and that plaintiff’s water has come to her partly through these ditches, and partly by overflow on the surface of the soil. The defendant alleges, further, that plaintiff had come upon his land and torn out of his ditches a number of dams and gates and had dug new ditches, deepened the old ones, and so prevented defendant from using his irrigating system. The plaintiff’s allegation of damage is denied.

In a cross-complaint the defendant sets up substantially the same matters pleaded in the answer, asks that the court divide the waters of the Burgess ditch according to the rights of the parties, that plaintiff.be required to conduct her waters by a route to be directed by the court, outside of defendant’s irrigated premises, and that plaintiff be enjoined from interfering with defendant’s dams or ditches. Plaintiff’s answer to the cross-complaint asserts that the Burgess ditch has a capacity of one thousand six hundred inches, denies the commission of the wrongful acts charged against her in the cross-complaint, and sets up a prior judgment by which it was determined that the plaintiff was the owner of a ditch and waterway across the lands of defendant for the purpose of conveying her waters

The cause was tried before a jury, which returned a general verdict in favor of the plaintiff, assessing her damages at one dollar, and, in addition, specially found as follows: “1st. We find that Mrs. Hoyt owns % of the Miller, Hoyt and Casedy ditch. 2d. The said % to be delivered over the premises of E. C. Hart and through what is known as the B ditch. 3d. Water to be measured at the point taken from the Miller, Hoyt and Casedy ditch between one foot and 100 feet north of where the back ditch leaves the Miller, Hoyt and Casedy ditch. 4th. Measuring-box to be placed in the west end of the B ditch between one foot and 100 feet from the fence or Hoyt line. 5th. Mrs. Hoyt to pay % of the expense for keeping up the said waterway and not to interfere in any way with the irrigating water system of the defendant.” The court made its findings of fact, in which it set forth the foregoing verdict and special findings of the jury, and, as it recites, after fully considering the verdict and findings of the jury,” it found that the full capacity of the Burgess ditch is not more than six hundred inches; that the water actually carried in it during the irrigating season varies from time to time, at times getting as low as from forty to sixty inches; that the plaintiff and her predecessors owned an undivided one eighth of these waters, and the defendant, Hart, five eighths, Haight having a first-right to the remaining two eighths; that plaintiff’s proportion at no time exceeds seventy-five inches; that plaintiff and her predecessors have for many years conducted their one eighth part of the waters of the Burgess ditch over defendant’s land through ditches and waterways in a described course; that since the commencement of the action the plaintiff has materially enlarged and deepened one of the ditches running through defendant’s land, and has torn out defendant’s dams and turnouts; that said ditch has been so enlarged that stock cannot cross it safely, and wagons or farming machinery cannot be driven over it; that these operations have prevented

Following these findings there was a decree or judgment, which,.after setting forth the rights of the parties to the waters of the Burgess ditch, and the plaintiff’s easement over the premises of the defendant, Hart, as described in the findings, declares that said easement of plaintiff is held by her in common with defendant, Hart, “and he has the right to conduct his waters through said ditches, etc. jointly with plaintiff and to the extent hereinafter specified. ’ ’ The decree then provides for a division of the waters of the Burgess ditch by means of a dividing box, and enjoins the defendant, Hart, from damming or filling up the ditches in which plaintiff has an easement so as to reduce their carrying capacity to less than seventy-five inches, ‘ ‘or from in any way or manner interfering with or arresting or diminishing the flow of water therein to which the plaintiff, Elizabeth Hoyt, is at any time entitled to have and receive as her proportionate share of the waters of said Burgess ditch; provided, however, that said defendant, Hart,” shall be permitted to fill up said ditches so that they shall be as they were before plaintiff deepened them, and to use said ditches in common with plaintiff for carrying his own waters; “provided, however, that he at no time prevents the one eighth of the waters of the said Burgess „ . . ditch from flowing down through said ditches.” The plaintiff is by the decree enjoined from interfering with Hart’s premises or his irrigating system, except for the purpose of cleaning out and repairing the ditches and waterways in which she has an easement. The costs are evenly divided between the parties, and judgment is given to plaintiff for $23.60, the excess of her costs, as taxed, over one half of the costs of both.

It has seemed necessary to make this somewhat extended statement of the pleadings, and the proceedings culminating in the decree, in order that the points made by the plaintiff on her appeals may be clearly set forth and discussed.

The appellant’s principal objection is directed against the provisions of the decree which declare her right to an easement across defendant’s land. It is claimed that the decree, in authorizing the defendant to use the ditches running over his

It is suggested that as defendant is permitted to reduce the.capacity of the ditches to seventy-five inches, and to use them in common with plaintiff, the plaintiff may be restricted to one half of the capacity of a ditch which when full is only large enough to accommodate the flow to which she is entitled —viz. seventy-five inches. In answer to this it is sufficient to say that defendant’s right to use the ditches is always subject to the proviso that he shall not interfere with the flow to which plaintiff is entitled. If the ditches be reduced to a capacity of seventy-five inches, defendant will be entitled to use them only when plaintiff’s one-eighth share of the waters of the Burgess ditch amounts to less than seventy-five inches, and then only to such extent as will not prevent plaintiff from receiving her full one-eighth share.

There is no force in the contention that the court failed to find upon material issues. The issue raised by the allegation (and denial) that defendant trespassed upon plaintiff’s easement to her damage is determined by the verdict of the jury, which, from the findings and the judgment, appears to have been adopted and accepted by the court. Such adoption obviated the necessity of any further finding. (Goldman v. Rogers, 85 Cal. 578 , [ 24 Pac. 782 ]; Morrison v. Stone, 103 Cal. 94 , [ 37 Pac. 142 ].) There is no finding upon the issue tendered by the answer to the cross-complaint, alleging a former judgment in favor of plaintiff, but the absence of such finding is immaterial. Plaintiff relied upon this judgment merely for the purpose of establishing her right to an easement for conveying her water across defendant’s land. She has been awarded the easement claimed, and would be entitled to no greater rights if the court had expressly found that such easement had been established in her favor by a prior judgment. As we have seen, plaintiff’s ownership of an easement over defendant’s land is in no degree inconsistent with the use by defendant of the servient tenement, so long as such use is

For reasons above stated, it is of no importance that the court did not find that defendant threatened to continue to commit the acts complained of. The purpose of the allegation to this effect was to entitle plaintiff to an injunction restraining such acts, and this relief was granted her.

The appellant contends that the court erred in dividing the costs between the parties. The general rule is undoubtedly that in suits in equity the costs may be apportioned according to the discretion of the court. But the rule has been modified in this state by statutory provisions regulating the allowance of costs. Section 1022 of the Code of Civil Procedure declares that “costs are allowed, of course, to the plaintiff, upon a judgment in his favor, in the following eases: ... 5. In an action which involves the title or possession of real estate. . . .” We think this action, in which the main issue was whether or not the plaintiff was the owner of an easement over defendant’s land involved the “title or possession to real estate” within the meaning of this section. An easement is real estate; and its possession or title is involved in an action seeking damages for past trespasses and a restraint against future trespasses upon such easement, where the defendant puts in issue the existence of the easement. Many cases holding that such actions come within the terms of similar statutes

So far, therefore, as concerned the trial of the issues arising on the complaint and the answer thereto, the plaintiff, having prevailed, was entitled to costs. But there was also a cross-complaint, involving in like manner the title or possession of real estate. As to this the defendant was plaintiff, and he succeeded in establishing in part the right claimed, and was granted relief. If the questions raised by the cross-complaint and the answer thereto had been litigated in a separate action, the defendant herein, who would have been plaintiff in such action, would have been entitled to his costs. We think his right thereto is not affected by the fact that he prosecuted his claim as plaintiff in a cross-complaint. On the record before us it does not appear what portion of the total costs were properly attributable to the trial of the original action, and what portion to the trial of the cross-action. So far as we can see, the division of the costs made by the court may have resulted in giving to each of the parties the exact amount of costs which he or she had the right to recover. Error will never be presumed, but must be made to affirmatively appear, and this court cannot say that any right of the plaintiff was injuriously affected by the apportionment of costs directed by the judgment.

The decree, probably through inadvertence, omits to give plaintiff- judgment for the one dollar damages awarded her by the verdict of the jury. This oversight we regard as too trifling to require even a modification of the judgment.

The judgment and order appealed from are affirmed.

Hearing in Bank denied.