9. SAME.

In a suit to quiet title to an irrigation ditch, claimed by plaintiff by prescriptive right acquired by his predecessor, it was proper to admit in evidence testimony of the predecessor as to his efforts to sell the ditch to defendant, and that defendant did not dispute the witness' ownership.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 771, 772.]

10. TRIAL-ORDER OF PROOF.

Where, in a suit to quiet title to an irrigation ditch, plaintiff claimed that his predecessor had acquired a prescriptive right to it, there was no error in admitting in evidence deeds from plaintiff's predecessor to him before the introduction of evidence tending to show that plaintiff's predecessor acquired any title.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 138, 139, 141, 143.]

Where, in a suit to quiet title to an irrigation ditch, plaintiff claimed that his predecessor had acquired a prescriptive right to it, and evidence was introduced tending to show adverse use by a third person, it was proper to admit evidence of certain leases made by plaintiff's predecessor to such third person to show that he used the ditch under lease from the predecessor.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 134, 135.]

12. APPEAL-HARMLESS ERROR - EXCLUSION OF EVIDENCE--SUBSEQUENT ADMISSION.

In a suit to quiet title to an irrigation ditch, plaintiff claimed that his predecessor had acquired a prescriptive right to maintain the ditch over defendant's land and a witness testified that he had frequently worked the ditch on defendant's land, and was then asked by defendant if he did not get defendant's permission, and an objection to the question was sustained, but the witness subsequently testified that defendant directed him about the work. Held, that any error in sustaining the objection was cured.

[Ed. Note.-For cases in point. see vol. 3, Cent. Dig. Appeal and Error, §§ 4200-4205.]

Appeal from Superior Court, Tulare County; H. Z. Austin, Judge.

Action by John Bashore against H. M. Mooney and others. From a judgment in favor of plaintiff, and from an order denying a new trial, certain defendants appeal. Affirmed.

Hannah & Miller and Alfred Daggett, for appellants. Chas. G. Lamberson, for respond

ent.

CHIPMAN, P. J. Action to quiet title to a certain water ditch known as the "Zumwalt Extension of the Tulare Irrigation Company's Ditch," and the right of way therefor. Two of the three original plaintiffs conveyed to the third after the complaint was filed, and the latter filed a supplemental and amended complaint as sole plaintiff in the case. There were numerous defendants, as to some of whom the court found that they had no interest in the ditch; as to others the court found that they had a certain interest therein; as to the defendant Tulare Irrigation Company it was found that it was the owner of said ditch to a certain point, connecting with the portion of said ditch found to belong

to plaintiff, with "the right at all times to turn into said portion of said ditch owned by plaintiff as aforesaid, all the surplus water of said defendant which it shall desire to turn therein." None of these defendants appeal. As to defendants, appellants, the court found that they are the owners of the right to maintain certain drops and headgates in the ditch and certain side ditches leading therefrom on certain land by them owned, situated in section 7, township 19 south, range 25 east, through which plaintiff's ditch runs, in part, and to take. therefrom water sufficient to irrigate 100 acres of land on said section, but that they have no other right to or interest in plaintiff's said ditch. Plaintiff was found to be the owner of the ditch and right of way in question, except as above indicated and judgment passed for plaintiff accordingly. The defendants last above referred to appeal from that part of the judgment which adjudges plaintiff to be the owner of so much of said ditch and right of way as passes over said last-named defendants' lands in said section 7 with the right to enter thereon at proper times to repair and operate the same; also from that part of the judgment which limits said defendants' rights as above stated. After judgment was entered and notice of appeal served, defendant and appellant J. J. Mooney died, and defendant H. M. Mooney was substituted, as administrator. In their brief appellants do not question that part of the decree or the findings which relate to the Tulare Irrigation Company and that interest will not be noticed farther. Indeed, by their answer they seem to concede the rights of the irrigation company. The appealing defendants in their answer denied plaintiff's ownership of the portion of said ditch which passes over defendants' said land, and alleged that the Tulare Irrigation Company is the owner of the portion of said ditch from the east line of said section 7 for a distance of one-quarter of a mile, and that the remaining portion of said ditch situated on said section 7 is owned by defendants. In the answer of some of the many remaining defendants it is alleged that the entire ditch from its point of commencement to its end was constructed for the use and benefit of the owners of the land lying along the same, "and as a neighborhood ditch to supply water for irrigation to and upon said lands from the system of the Tulare Irrigation Company and from other irrigation systems and has been since its construction appurtenant to the said lands of defendants." Other defendants claimed part ownership in the ditch. The Tulare Irrigation Company was made a defendant upon a demand of several of the defendants. Appellants challenge the sufficiency of the evidence to support the findings upon which the interests decreed to plaintiff and appellants are based. It is also urged that the findings do not, nor does the complaint, support the judgment.

*

The judgment and its support: The con

tention is: (1) That the complaint is insufficient to support the judgment, because based upon the allegation that the plaintiff is the owner in fee of the ditch in question, while the findings show simply a tenancy in common with appellants. (2) That the findings show that the ditch is constructed upon land owned by appellants, and plaintiff never acquired any title to the ditch from the owner by conveyance or agreement. (3) That the findings fail to show that plaintiff acquired title by prescription as required by the statute of limitations. (4) That the findings are so uncertain that it cannot be ascertained therefrom to what extent plaintiff is the owner of a right of way for the ditch referred to in the findings and judgment.

1. The point that the findings are insufficient as to the extent of plaintiff's title, because of the allegation in the complaint of ownership in fee, is not well taken. That plaintiff claimed title in fee did not preclude the court from finding a right or ownership in the nature of an easement; the greater title alleged included the lesser. The judgment may not exceed the demand of the complaint, but there is no rule that would prevent the court from granting less relief than that demanded. Plaintiff's right had its inception in the act of constructing the ditch, and if it ripened into title by adverse use for the statutory period this was sufficient.

2. It was not necessary that the prescriptive right should have its origin in a grant from the owners of the land or by agreement with them. Code Civ. Proc., §§ 324, 325. The rule requiring entire possession by one claiming land under a prescriptive right is inapplicable to rights of way for roads and ditches. Otherwise it would be practically impossible to acquire similar easements by prescription. It was said in Humphreys v. Blasingame, 104 Cal. 40, 44, 37 Pac. 804, 805: "Plaintiff's use of the way under claim of right was necessarily hostile, but it need not amount to an ouster or exclusion of the defendant from a right to use the way. The use of the way, if without right, is a trespass, which would have given the defendant a right of action, and that is all that is necessary to set the statute running, so far as a right of action is concerned." Of course there must be occupancy of so much of the land as is sought to be taken for the right of way.

3. The prescriptive right which the court found to have ripened in plaintiff and his predecessors in interest was initiated as early as 1879 and is the right referred to in the findings and, as presently shown, continued until the filing of the complaint, except as to defendants' interest. Defendants' prescriptive right was found by the court to have been initiated about the year 1890, long after the five years adverse use by plaintiff's predecessors had elapsed. That defendants could acquire a prescriptive right to use the ditch to convey a limited quantity of

water to their lands while plaintiff or his predecessors retained the right also to use the ditch for his own purposes to the extent of its remaining capacity, we have no doubt. We so held substantially in the recent case of Smith v. Hampshire (Cal. App.) 87 Pac. 224. See, also, Abbott v. Pond, 142 Cal. 393, 396, 76 Pac. 60. "Every interest created in favor of several persons in their own right is an interest in common," unless acquired in a way not involved here. Civ. Code, § 686. 4. It is also contended that the findings are insufficient to show a prescriptive right. The particular finding attacked is the following: "That ever since the construction of said ditch as aforesaid (which the court found was in 1879) it has been used by the said persons who constructed the same as aforesaid, and by their grantees, openly, continuously, adversely to the titles to all others, and under a claim of title exclusive of any other right, as their own, and notoriously and uninterruptedly for a period of more than five years prior to the commencement of this action, and they have paid all the taxes levied or assessed against said ditch and the right of way therefor." This finding, in our opinion, covers every element mentioned in Unger v. Mooney, 63 Cal. 595, 49. Am. Rep. 100, as requisite to a perfect title by prescription. This case has been frequently cited approvingly as authority on this point. The title there involved was to a city lot and the court said: "There are five elements required to make out an adverse possession sufficient to constitute a defense under the statute of limitations. (1) The possession must be by actual occupation, open and notorious, not clandestine. (2) It must be hostile to the plaintiff's title. (3) It must be held under a claim of title, exclusive of any other right, as one's own. (4) It must be continuous and uninterrupted for a period of five years prior to the commencement of the action, not, however, necessarily next before the commencement of the action. (5) Since the passage of the proviso to section 325 of the Code of Civil Procedure in 1878, payment of taxes." Appellants cite Churchill v. Louie, 135 Cal. GOS, 67 Pac. 1052, and claim that it is there held as necessary. that it must appear that the use was exclusive. The point there decided was that the pleading failed to show "that the use was exclusive or adverse to plaintiff * * or that it was adverse to

*

any one." Section 324 of the Code of Civil Procedure is as follows: "Where it appears that there has been an actual, continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment or decree, the land so actually occupied, and no other, is deemed to have been held adversely." Section 325 of the same code declares that adverse possession is not established, "unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons,

have paid all the taxes which have been levied and assessed upon such land." The courts have added some explanatory words in formulating the elements which are deemed necessary, under the statute, to constitute prescriptive title, but they do not and could not materially change its requirements. When these requirements of occupancy are fully met, a title is conferred, "denominated a title by prescription, which is sufficient against all." Civ. Code, § 1007. We are unable to discover any element lacking in the finding referred to which is necessary to meet the statutory requirements or the decisions of our Supreme Court.

5. There is no radical or other uncertainty in the description of the ditch such as is contended by appellants. It was commonly known as the "Zumwalt Extension Ditch," sometimes called the "Mooney Ditch," and its location was well known. There would be no difficulty in finding it from the description given, and a map was made part of the bill of exceptions, by defendants, which locates the ditch definitely.

Appeal from the order: In discussing this branch of the case appellants appear to attach importance to the fact that the ditch in question is not used to divert water from a natural water course but from the canal of the irrigation company, and to the further fact that the land over which the ditch runs belongs to defendants. It is immaterial , whence plaintiff gets the water for his ditch, whether from another ditch or from some natural stream. The ownership of the land. by defendants is also, as we have already shown, equally immaterial. It is also argued, and may not be disputed, that a ditch or right of way is an interest in real property and can be granted only by an instrument in writing (Code Civ. Proc., § 1971; Smith v. O'Hara, 43 Cal. 371; Hayes v. Fine, 91 Cal. 396, 27 Pac. 772) and if the evidence in the opinion of the trial court, had established simply a parol license, as claimed by appellants, founded in personal confidence or favor, no interest in the land would have been created that was not subject to revocation. Jensen v. Hunter (Cal. Sup.) 41 Pac. 14, is cited by appellants, to the point. The evidence shows that the ditch in question from its point of connection with the Tulare Irrigation Company's ditch to its terminus is four or five miles long, constituting a continuous ditch, and from it several defendants at different points have obtained water to irrigate their land for various crops ever since its completion. It was constructed in It was constructed in the spring of 1879, as found by the court, and, as the evidence establishes, by D. K. Zumwalt, J. B. Zumwalt, Samuel Fowler, and A. J. Fowler. It was an extension and known as the "Zumwalt Extension of the Tulare Irrigation Company's Ditch" and was designed to irrigate the lands situated west of defendants' lands. There was some controversy with this irrigation company as to

the starting point, but by stipulation it was agreed that it began 15.54 chains west of the east line of section 7, above described, and ran thence southwesterly across said section of which the south half and the southwestern quarter of the northwestern quarter was then owned by Michael Mooney. He died in November, 1881, and defendant John J. Mooney became the executor of his will and administered his estate and managed the property until February, 1890, when it was distributed, including the said lands in section 7, to defendants (appellants), the heirs at law of Michael Mooney. The map shows that the ditch passes over the lands of defendants J. J. Mooney and II. M. Mooney.

The contested and vital issue, reduced to its simplest form, is whether the right of way and ownership of the ditch, claimed by plaintiff, ripened into a prescriptive title. Some testimony given by witness Samuel Fowler was offered by these defendants tending to establish the fact that the ditch was built by consent of Michael Mooney, and that he agreed to pay Fowler $100 if he, Fowler, would bring it through Mooney's land, and hence that Mooney became its owner. It would require strong evidence to show that a ditch of the length and cost of this one, made to serve so many interests, would be left to the absolute control of Mooney by the sole ownership and control of the section connecting the ditch with the water system of the Tulare Irrigation Company. Similar evidence would be called for to convince the ordinary mind that such a ditch would be constructed under a mere license subject to revocation at any moment.

He

As appellants place much reliance on Fowler's testimony, coming from one of the ditch builders, it may as well be here noticed as elsewhere. He testified that he met Michael Mooney at the time the ditch was projected. He was asked what was said about the ditch between him and Mooney and answered: "I told him I wanted to build a ditch down through his place. I asked him how much he would be willing to assist me in building the ditch, how much he would pay me. said he would give me $100 if I would bring water through there. Q. Did he say he would give you $100 if you would bring water through there, or if you would bring the ditch across his land? A. Well, it was $100 for helping construct the ditch. He was to give $100 if I was to build the ditch through there. That is about all I can recollect of it." On cross-examination he testified. "I think I had gone up there and located where I wanted the ditch before I saw Mooney. I and D. K. Zumwalt, J. B. Zumwalt, and my son Jack had agreed that we should build the ditch. I certainly would have built the ditch whether Mooney had offered to pay me anything or not. It was my intention to go and build the ditch, provided I was not interfered with by any one." He testified that there was nothing said between him and

Mooney to the effect that, when built, the ditch was to belong to Mooney. It appeared that witness did not call upon Mooney for the $100, nor did he present a claim against his estate therefor. But some time after it was too late to present claims he was given some hay by J. J. Mooney, value not stated, on account of this claim, but whether it was "in satisfaction of the debt his father owed" the witness, the latter could not recollect.

Witness D. K. Zumwalt testified: "J. B. Zumwalt. Sam Fowler, Jack Fowler, and myself constructed that ditch. I made no arrangements for any leave or license to make that ditch through the Mooney land." In reply to the use made of the ditch he testified: "Running water through it for irrigation purposes, stock, and irrigation purposes. The men who helped make the ditch, I mean J. B. Zumwalt, Samuel Fowler, and Jack Fowler, who assisted me in building the ditch used it in conjunction with me, and afterwards our neighbors, we permitted them to use water from the ditch. Jack Fowler's proper name was A. J. Fowler. Samuel Fowler continued to use the ditch somewhat, but not regularly, until the time he sold to me. J. B. Zumwalt continued to use it up to the time of his death, which occurred about December, 1891, and I continued to use it more or less each year up to the present time. From the time I acquired all the title to that ditch I used it for the purpose of conveying water up to the time I sold it, and have been using water through the same ditch since, but not exercising control. I continued to run water through there, and, whenever repairs or anything was necessary, it was done through my men, or others along the ditch using water. I never at any time asked the permission of the Mooneys or any of them, to run water through that ditch, and I never at any time asked permission of the Mooneys, or any of them, to go upon their land for the purpose of repairing the ditch. Whatever I did in connection with running that water through the ditch was done without any reference to the rights or claims of the Mooneys, or any of them, or in relation to anything I did to the ditch. The Mooneys did not, nor did any of them, ever at any time interfere in any way with my operation of that ditch." He testified to having been along the ditch on the Mooney land and clearing the ditch, and that he had sent his men there to make repairs on the ditch, and that to his knowledge the Mooneys made no objection. He testified also to having proposed on several occasions to sell the ditch to the Tulare Irrigation Company while J. J. Mooney was president of the company, and in 1891, just before the death of J. B. Zumwalt, who joined with him for that purpose; that J. J. Mooney was present at the meeting of the board of directors when the matter was talked over, and that he made no objection on the ground that witness was not

the owner of the ditch. Witness stated, however, that some one objected to buying the ditch "because of the adverse claim of Stufflebeam and the Bashores"; that the directors, including Mooney, went with witness along the entire line of the ditch to examine it and witness went for the purpose of showing the property he proposed to sell, and it included the ditch over the Mooney land. He testified that most of the work done in constructing the ditch was by hired men; that some time in "the latter part of the 80's." about 1886. J. J. Mooney asked permission to use the ditch to irrigate some land and to put in a headgate to turn out the water and witness stated to him that there was no objection. Witness did not recollect that permission was afterwards asked, but he testified: "The Mooneys. H. M. and J. J., have used that ditch every year and up to now, every year to irrigate their lands through which it flows, and they have not come to me to get my permission to do that."

There was evidence that owners of land along the ditch below the Mooney land, including, among others, the ditch builders, were users of the water coming through the ditch from the time of its completion, and that they exercised the right of repairing and controlling the ditch from its head down. There was more or less controversy among these users with D. K. Zumwalt as to the right to the ditch and in some instances litigation ensued. The evidence tended to show that these contested rights did not involve the Mooneys, and that the latter made no claim to the ditch itself beyond the right to use a certain amount of the water running through it, of which the extreme claim proven was a right to use the water necessary to irrigate 100 acres of their land, as found by the court, and there was evidence that the Mooneys made no claim to the ditch itself until about the time this action was brought. The evidence was abundant to establish the prescriptive right as found by the court to be in appellants. Touching plaintiff's right to the ditch there was more or less conflict in the evidence, but there was sufficient to support the findings. It is not the office of the reviewing tribunal to attempt a reconciliation of the conflicting evidence, or to say what witnesses are to be believed and what ones to be distrusted, or to determine where the preponderance of evidence lies. This is peculiarly the function of the trial judge.

Appellants assign numerous errors in the admission or exclusion of evidence. Some of these will be noticed; all of them do not call for comment. Plaintiff was interrogated as to certain conversations with J. J. Mooney concerning this ditch. That occurring in 1880 need not be noticed as the testimony was withdrawn. The witness testified as to conversations with Mooney in 1884 and some other times, the object of which seems to have been, not to show a transfer by Mooney

or create an estoppel, as suggested by appellants, but to show that the witness was inquiring as to the ownership of the ditch right, and that Mooney made no claim to it. As a circumstance bearing upon the issues the evidence was admissible.

It would require a recital of much evidence to show its bearing as to the witness having turned water out of ditch on the Higbee land above the Mooney land. Conceding its irrelevancy it was harmless.

The testimony of witness Zumwalt as to his efforts to sell the ditch to the Tulare Irrigation Company while Mooney was president was admissible as tending to show Zumwalt's claim of ownership, and Mooney's acquiescence in the claim by his conduct at that time.

The deeds placed in evidence by plaintiff, showing that the title claimed by the original builders of the ditch had been conveyed by them to D. K. Zumwalt and through him finally to plaintiff, were admissible. The objection urged is that there was as yet no evidence, introduced when these documents were offered, tending to show that Zumwalt ever had any title to the ditch by adverse use or otherwise. The order of proof is not ground for error. We must consider these conveyances and other documentary proofs in connection with all the other evidence of which there was some supporting the findings as to the Zumwalt title by prescription. The case of Hayes v. Fine, 91 Cal., 391-398, 27 Pac. 772, is not in point. There the claim made was under an instrument in writing, and the effort to establish the claim by proof of labor done would be inadmissible because

objected to and objection sustained as irrelevant, incompetent, and self-serving. He subsequently testified that J. J. Mooney directed him about the work. This answer appears to us to have met the point defendants were making. If Fay was working under direction of Mooney, the latter's permission would seem to follow.

Certain objections were made to evidence which appears to have concerned defendants other than appellants and was admitted not so much as bearing upon appellants' interests as upon the interests of other defendants or as tending to contradict certain of their witnesses. We cannot see that appellants were injuriously affected by this testimony.

Discovering no prejudicial error in the record, the judgment and order are affirmed.

We concur: BUCKLES, J.; McLAUGHLIN, J.

(4 Cal. App. 269) ANDERSON v. ANDERSON. (Civ. 208.) California. (Court of Appeal, First District. Aug. 24, 1906.)

1. DIVORCE-NEW TRIAL-GROUNDS-IRREGULARITIES IN CONDUCT OF TRIAL.

Where, in an action for divorce, after the evidence on behalf of the plaintiff had been given, the defendant was called as a witness and testified in her own behalf, but before she concluded her testimony, she was interrupted by the court, and informed that she had testified enough, and the court then, before she concluded her testimony or left the witness stand, granted plaintiff a divorce and denied the prayer in the cross-complaint, this constituted an irregularity entitling the defendant to a new trial.

higher is required. Here the claim is not based at all upon a written instrument, but upon adverse use, and that having been established the subsequent conveyances were admissible to show ownership in plaintiff.

Certain leases made by Zumwalt in 1885 and 1886, by which he agreed that one Adlesbach might use the ditch, were admitted. This was in plaintiff's rebuttal and was for the purpose of meeting certain evidence which concerned defendants Peter and Marie Adelsbach. There was some evidence tending to show adverse use by the Adelsbachs, and counsel stated that the purpose was to show that they used the ditch under lease from Zumwalt, whose interest plaintiff had acquired. We cannot see that the evidence injuriously affected appellants under the offer.

Defendants' error marked 13 was cured by their subsequently drawing out the facts sought. Witness Fay was a defendant and, when called as a witness for defendants, testified that he had gone frequently into the Mooney field to work on the ditch. was asked by defendants if he did not, before doing this work, get permission from John or Hugh Mooney. The question was

He

LOWER COURT-AFFIDAVITS FOR NEW TRIAL.

Where objections to affidavits for a new trial were not supported by any facts presented to the court either when the affidavits were presented, or when the motion for a new trial was heard, and the bill of exceptions, authenticating the affidavits, was subsequently settled by the court without reference to the objections they carnot be considered on appeal.

Appeal from Superior Court, City and County of San Francisco; J. C. B. Hebbard, Judge.

Action by John Anderson against Johanna Matilda Anderson for divorce. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

A. Morgenthal, for appellant. Jos. Rothschild, for respondent.

HARRISON, P. J. In his complaint, the plaintiff alleges as his cause of action the extreme cruelty of the defendant, setting forth divers acts thereof, all of which were denied by the defendant in her answer, and in addition thereto she filed a cross-complaint, charging the plaintiff with extreme cruelty, for which she asks a decree of divorce in her favor. Upon the trial the court found that "all of the allegations and aver