Feely v. Shirley
California Supreme Court
Appeal from the District Court of the Third Judicial District, Santa Clara County. The complaint averred that the plaintiff was the owner and in possession of a ditch and flume, constructed for conducting water, and that he had for a long time been conveying water in the same for irrigating his land, and that the defendant wrongfully and unlawfully pulled down and destroyed the flume and diverted the water. There was a prayer for an injunction and for judgment for damages.
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Appeal from the District Court of the Third Judicial District, Santa Clara County. The complaint averred that the plaintiff was the owner and in possession of a ditch and flume, constructed for conducting water, and that he had for a long time been conveying water in the same for irrigating his land, and that the defendant wrongfully and unlawfully pulled down and destroyed the flume and diverted the water. There was a prayer for an injunction and for judgment for damages. The answer denied that the defendant wrongfully and unlawfully, os-otherwise, pulled down or destroyed the flume and…
1Opinion of the Court
By the Court,
Niles, J.:
The ruling of the Court in striking out a portion of the answer cannot be reviewed upon this appeal, since it forms no part of the judgment roll. (Dimmick v. Campbell, 31 Cal. 238; Moore v. Del. Valle, 28 Cal. 174.)
The motion for a nonsuit was properly denied. The breaking of the flume was distinctly alleged in the complaint, and the answer took issue upon the wrongful character of the act merely, but did not deny its commission. The breaking was, therefore, an admitted fact; and, conceding the plaintiff’s light of property in the flume, no proof of *371the breaking was…
2Cases cited2 opinions
- More v. Del ValleCalifornia Supreme Court · 1865
- Dimick v. CampbellCalifornia Supreme Court · 1866
3Cited by4 opinions
- Thomas v. StateSupreme Court of Arkansas · 1888
- Thomas v. StateSupreme Court of Arkansas · 1891
- Hawley v. KocherCalifornia Supreme Court · 1898
- Spence v. ScottCalifornia Supreme Court · 1893