"We the jury find:

"First-That the plaintiff was the owner and in possession of the lot of land described in the complaint at the time defendants' ditch was dug, and is still the owner.

"Second-That such ditch was dug through said lot by defendants, and without the consent of plaintiff.

"Third-And that said ditch does interfere with the comfortable enjoyment of said lot, and injuriously affects said lot." These facts are insufficient to sustain the judgment of the court below, directing the abatement of appellants' ditch.

4th. The court below erred in refusing a new trial, because the statement and affidavits, the deed from Gordon to Weimer (which action was brought to enforce a vendor's lien), all show that the respondent was not the owner of the lot at the time the ditch was dug.

As to first point. The action of the court below in striking out those parts of the answer specified in the first and second points above set forth, can only be sustained upon the ground that they are sham or frivolous. A sham answer and defense is one that is false in fact, and not pleaded in good faith. "A frivolous answer is one that shows no defense, conceding all that it alleges to be true": Brown v. Gimsan, 1 Code Rep., N. S., 1856. It is not contended that the portions stricken out of the answer in this case come within the definition of a sham answer given above; but it is contended that they come within that of a frivolous answer, and therefore we shall confine our attention to the latter question.

This action grows out of an alleged nuisance. In such actions damages may be recovered, or the nuisance abated, or both may be done: Pr. Act, sec. 249. So far as the abatement of the nuisance is concerned, it is a chancery action. "The action may be enjoined or abated." This leaves it to the discretion of the court; and whether the court will do either or not depends entirely upon the equity of the case. As to its being in the discretio, see Bemis v. Clark, 11 Pick. 452, where a similar statute is construed.

For the purpose of enabling the court to exercise its discretion understandingly and equitably, it was proper to plead the matters in question; for if the plaintiff sustained but trifling injury from the alleged nuisance, which could be read

ily compensated in damages, and an abatement of the nuisance would operate to the irreparable or great injury of the defendants, equity requires that the plaintiff should be content with his damages, and the court should exercise its discretion accordingly. Hence, the fact that the land was public land and that the works of defendants were of great value and importance were properly pleaded, for the purpose of enabling the court to render such a judgment as equity between the parties should dictate. The plea of public land was proper, for the reason that, if the ditch was dug prior to plaintiff's title, he took it as he found it, and subject to all rights antecedently acquired: Crandall v. Woods, 8 Cal. 136.

The court below has, however, acted upon the hypothesis. that the fact of nuisance being determined, it followed of course, as a matter of law, that the nuisance must be abated, regardless of consequences. In this the court was mistaken, as we shall endeavor to show hereafter, and consequently erroneously struck out those parts of the answer in question. As to the second point, to wit, insufficiency of the facts found to sustain the decree. The facts are, that plaintiff was the owner at the time the ditch was dug, and is still; that the ditch was dug without his consent, and that it injuriously affects the lot, etc. No damages are found, notwithstanding they are prayed for in the complaint. The jury do not find that, at the time the ditch was dug, the plaintiff forbade the defendants from digging it, but that they dug it without his consent. What is the meaning of the words "Without his consent?" Does it mean that he forbade them? Most certainly not: the words certainly convey no such idea. The meaning is simply that the defendants dug the ditch without first obtaining the plaintiff's permission, or that he gave no express consent. The most latitudinous interpretation of the words can not assign them any other meaning. If we are correct in our understanding of the verdict, the plaintiff occupies the position of standing silent, while the defendants were engaged in constructing the ditch, and is now estopped. Having stood silent, and suffered the defendants to expend their labor and money without objecting, he can not now disturb their enjoyment of it: 6 Ad. & El. 469; 9 B. & C. 586; 3 B. & Ad. 318, note a; 3 Johns. Ch. Rep. 116.

But concede, for the sake of the argument, that the true meaning of the verdict is that the respondent forbade the appellants to dig the ditch; even then we say that the facts do not sustain the judgment. In order to show himself entitled to abatement of the ditch, the plaintiff must show it to be such a nuisance as a court of equity would enjoin: he must show such an injury as can not be compensated in damages. He has entirely failed to show such a case. For the two years during which this pretended nuisance has existed, he has claimed only three hundred dollars damages; and the jury, upon his own showing, refused him any damages. The injury, upon the plaintiff's own showing, and according to the verdict, is of the most trifling character. Courts of equity will not interfere, unless the trespass produces irreparable injury or great mischief. It is not every technical nuisance that a court of equity will abate; but where the injury is trifling, and can be fully compensated in damages, it will leave the party to his judgment at law for damages; and more especially, as in this case, where an abatement would result in a great and irreparable injury to the opposite party: Bemis v. Clark, 11 Pick. 452.

"When an injury will adinit of a pecuniary compensation, a court of equity will never interpose": Ingraham v. Dunnell, 5 Met. 118.

As to the fourth point, to wit, the court erred in refusing a new trial. The judgment roll in Gordon v. Weimer shows that that action was brought to foreclose a vendor's lien. The present plaintiff allowed judgment by default in that case. This, taken in connection with the conveyance from Gordon, shows that the plaintiff was not the owner of the lot at the time the ditch was dug; if so, he could not maintain the action until after he had formally notified the defendants to abate the nuisance: Lupton v. McLincoln, 1 Stew. 133.

THOS. H. WILLIAMS, for respondent.

Our statute prescribes that an answer, among other things, may contain "any new matter constituting a defense to the action": Wood's Dig., p. 173, sec. 46.

And provides that "irrelevant and redundant matter con

tained in a pleading may, upon motion, be stricken out": page 174, sec. 57.

And defines a material allegation to be "one essential to the claim or defense, and which could not be stricken out without leaving the pleading insufficient."

Irrelevant matter and redundant matter is such, which, if taken as true, does not constitute a cause of action or a defense to the action.

This court has again and again decided that a defendant in an action respecting land, would not be permitted to set up outstanding title in another, or in the government, and that as between individuals, possession should be held “prima facie" evidence of title; then clearly the court below was correct in striking out the allegation that the land belonged to the government, and that the government had not conveyed to plaintiff, because, if true, the facts stated constituted no defense.

The same may be said in regard to the other matter stricken out, for this court has often decided that a trespasser upon the rights of another, who is digging a ditch, can not justify that he intends the water for mining purposes; and the value of his ditch is immaterial, as the dollars and cents in question can not affect the rights of the parties: Fitzgerald v. Urton, 5 Cal. 308; Tartar v. Spring Creek Water and Mining Co. 5 Cal. 395; and Burdge v. Underwood, 6 Cal.

45.

I invite special attention to the last case cited, as it is more directly in point than cases are usually found.

The cause of action, the judgment sought, the facts in the case, and the judgment rendered, agree precisely with this case, with this exception: the court there finds one hundred and fourteen dollars damages, the cost of filling the ditch, while in this case the judgment requires the defendants to fill it at their own cost, or if they fail to do so, the sheriff shall fill it at defendants' cost, which will amount to a greater sum than the one hundred and fourteen dollars in the other case.

I might here rest the case, but as counsel for appellants have seen fit to encumber the record with other questions, it may not be improper to briefly notice some of them.

They say "that the plea of public land was proper, because

if the ditch was dug before plaintiff took up the land, he took it as he found it, subject to all rights," etc.

This is a fair specimen of the defense, and can be answered in two ways:

1st. If defendants dug the ditch before plaintiff's location of the land, they should have positively and unequivocally averred the same, and not reach it by saying that the land belonged to the government.

2d. The complaint charges that plaintiff became the owner and possessor of the land in 1852, and that he was in possession when defendants commenced digging their ditch in 1855; and defendants do not deny either allegation-on the contrary, the answer admits the possession.

Appellants' counsel quibble as to whether the jury meant that plaintiff forbade the defendants' entry upon his lot; but conclude at length that the question is immaterial.

The verdict must be taken in connection with the pleadings, and it will be found that the only issue made upon this branch of the case was, whether defendants entered against the will of plaintiff; and upon that point the jury find for plaintiff. It will be observed that the denial of defendants is evasive, and that they do not even notice the allegation which charges that plaintiff has frequently requested a removal of their works, and that the ditch be filled.

But they say that plaintiff stood by-saw their work going on without forbidding it-thereby tacitly consenting to the trespass.

To which there are two answers:

1st. The entry by defendants was "prima facie" a trespass, and they must show consent, either express or implied, in defense. They fail to charge the same in the answer, to prove it, or to show it by the verdict.

2d. The jury find generally the entry against the consent of plaintiff, which according to strict language includes both express and implied consent, and the presumption is, that they intended their language to be understood in its ordinary acceptation.

Appellants contend, however, that conceding this a nuisance, still it is not such a one as should be enjoined or abated.