Burnett v. Whitesides

Citations

• 15 Cal. 35

Syllabus

<p>Refusal to grant new trial not reviewed in the Supreme Court, unless such refusal was an abuse of the discretion of the Court below.</p> <p>In an action for diverting water from plaintiff’s ditch, plaintiff and defendants both having ditches supplied from the same stream, the plaintiff’s rights being prior and paramount, defendants asked the Court to instruct the jury, that if defendants had brought water from foreign sources, and emptied it into the stream with the intention of taking it out again, they had the right to divert the quantity thus emptied in, “ less such amount as might be lost by evaporation, and other like causes.” The instruction was given, with the explanation, that they could not so reclaim the water as to diminish the quantity to which plaintiff was entitled as prior locator. Held, that the explanation was proper, the concluding words of the instruction being too general and indefinite.</p> <p>The jury having found plaintiff entitled to the use of so much of the water flowing in the stream as would run in a ditch of a certain capacity, a judgment was entered, following the verdict. Held, that the judgment is not erroneous, as not distinguishing between the water ordinarily flowing in the stream and the water from foreign sources emptied in by defendants. The law regulates the rights of the parties in this respect, and the judgment must be construed with reference to such law.</p>