Opinion
Appeal from the judgment of the Superior Court of Tulare County, and from an order refusing a new trial.
COUNSEL:
Brown & Daggett, for Appellants.
Eugene R. Garber, for Respondent.
JUDGES: In Bank.
OPINION
THE COURT [18 P. 786] This case was decided in Bank.
A rehearing was subsequently granted, and the cause has been again argued orally and upon paper.
Upon a careful examination of the record, we adhere to the conclusion reached in the former opinion.
We think the photographs offered were original evidence, and not secondary, as stated in the former opinion, and that their admission in evidence was proper; but when compared with the diagram which was admitted, we are of opinion, after studying the photographs in connection with the diagram and evidence, that defendant was in no wise injured by the exclusion of the former. As works of art, they are very creditable; as sources of information upon the pertinent questions involved, they have no appreciable value.
Upon the question of the statute of limitations, the court below found the facts against defendant.
The theory that defendant only consented that the People's Ditch Company, Fowler, or the Kaweah, should run the water down Johnson's slough to a given point, and then take it out and conduct it across his land, upon condition that they should build a dam and prevent it running upon his land below, loses most of its force when we realize that the ditch company was running the water for a practical purpose, and not merely for pleasure, and that to utilize the water for such purpose a conduit for its confinement was absolutely necessary. To give any particular force to the assertion of Johnson that he insisted upon a dam being built, and would have constructed it himself if the company had not, we must suppose that the water company were thereby induced to do something which they would not otherwise have done, which is not apparent here. It strikes us much as would the claim of an individual to the ownership of a necessary railway bridge across a stream because he had given the right of way for the road across his land on condition that such stream should be bridged. As the bridge in the one case is a necessary integral part of the road, without which it could not be utilized, so in the other the dam was indispensable to the conduct of the water to the point of user.
The cause was tried by a court well versed in questions of this kind, and entirely competent to give weight to every proper consideration bearing upon the evidence, and we do not feel authorized to disturb its findings as to the facts.
The other questions were properly disposed of in the former opinion.
The judgment and order appealed from are affirmed.
The following is the opinion of the court rendered upon the original hearing in Bank, on the 10th of February, 1888:
Thornton, J. This action was brought to restrain the diversion of the waters of Outside creek, and to have removed from the channel thereof obstructions to the free flow of the waters of said creek.
The court below gave judgment for plaintiff, from which defendant appealed.
The defendant moved for a new trial, which was denied, and from the order denying the new trial defendant also appeals.
The defendant urges a new trial on account of insufficiency of the evidence to sustain the decision of the court; but as there is a substantial conflict in the evidence on the material issues, we cannot on such ground, in accordance with the well-settled rule of this court, reverse the order of the court below.
Several points are reserved upon the rulings of the court in regard to the evidence offered, which we proceed to consider.
It is urged that the court erred in sustaining the objection of plaintiff to the following question put to a witness, Samuel Fowler: "State to the court, now, what work you did, what the condition of the country was before you commenced work, and what work you did in the shape of digging an artificial channel, if you dug one."
The witness had just stated that he knew, and had constructed, an artificial channel called the Fowler cut.
The purpose for which this question was put was to show that by means of the Fowler cut the water which flowed in Johnson's slough was increased, and that such increased quantity of water would overflow and injure defendant's land, if the same was not taken from Johnson's slough by means of an embankment and an artificial cut.
It should be remarked here that there was evidence tending to show that Johnson's slough was a branch or affluent of Outside creek, and that the court so found. On this creek plaintiff was a riparian owner.
It appeared that there was evidence admitted subsequently given by the same witness, that, by means of the Fowler cut and the People's ditch, an increased quantity of water was turned and did flow into Johnson's slough and Outside creek, and therefore the defendant suffered no injury by the rejection of the question. The plaintiff, being an owner of lands on Outside creek below the dam or obstruction put in by defendant which was complained of, had a right to the free flow of the water to his land without obstruction. The dam cut off the flow of the water entirely; and granting that the defendant had a right to protect his land from any injury which the additional quantity of water may have produced, still, he had no right to resort to a dam, a mode of protection which entirely obstructed and cut off the water of the stream from flowing to plaintiff's land. The defendant might, by embankments or levees on the side of the stream, have fully protected his land from injury, without interfering with the usual flow of water in the channel of the stream. For the damage caused by the additional quantity of water turned in by the means above referred to, defendant has his action against the parties who so turned it in, and could have enjoined them from so doing when it was done. The right claimed by defendant herein goes far beyond this. The claim herein preferred is to obstruct the flow of all the water in the stream, under the pretext of protecting his land from injury by the water, added to that which was the normal flow. We see no reason for allowing such claim, and the strongest reasons why it should not be allowed.
For the same reasons the court did not err in sustaining the objection of plaintiff to the following questions put to defendant:
" If this dam you speak of, and referred to in the complaint, is torn out, what will be the effect upon your land?"
" Will, or will not, the removal of this dam, referred to in the complaint and answer, result in turning a large body of water down upon your land to places where water is not accustomed to run?"
" State to the court what the result of pulling out that dam was."
The questions were all propounded on the theory that because the water which flowed in the channel of the stream, whether water added by the Fowler cut and People's ditch or not, sometimes injured the defendant's land, that the defendant had a right to obstruct entirely the flow of the stream which resulted and prevented it from reaching the riparian lands on the stream. This, as we have seen, the law disallows.
We see no relevancy to any issue in the case of the following question put to Johnson: "State whether or not the plaintiff, Bliss, through your license and permission, has cut a channel from the People's ditch, or rather from that portion of Johnson's slough that is used as a part of the People's ditch, for the purpose of carrying water out of the People's ditch into Outside creek."
The main issues in the cause were, whether Outside creek was a natural watercourse, and whether defendant had obstructed the flow of water therein. If the above question had been answered in the affirmative, we cannot see that it would have tended to disprove these issues.
Upon an examination of the photographic views offered and excluded, we cannot see that the defendant was injured by their being ruled out. There was primary evidence as to the ground by witnesses who testified from their personal knowledge of it. The views offered were in the nature of secondary evidence, as to which the best evidence had been offered, viz., that of persons conversant with the topography involved in the inquiry.
We have considered the other questions, and find no error in ruling on them.
The judgment and order must be affirmed. So ordered.
McFarland, J., Sharpstein, J., Searls, C. J., Paterson, J., and McKinstry, J., concurred.