Churchill v. Baumann

Citations

• 95 Cal. 541
• 30 P. 770
• 1892 Cal. LEXIS 863

Syllabus

<p>Diversion of Water —Participation of Plaintiff as Tenant in Com-_ mon—• Pleading — Denial of Injury—■ Estoppel. — In an action to recover damages for the alleged diversion of water by means of a dam constructed by the defendants, it may be shown as a defense, under the denial of injury to the plaintiff, that the plaintiff participated with the defendants in the maintenance of the dam and diversion of the water, as a tenant in common with the defendants; and it is not necessary specially to plead such fact as an estoppel. (By Sharpstein, J., and McFarland, J.)</p> <p>Id. — Consent to Injury. — One who consents to an act which occasions him loss is not wronged by it.</p> <p>Pleading — Answer — New Matter,—Any matter which does not discharge or avoid a cause of action theretofore existing, but the purpose of which is to show that the alleged cause of action never did exist, and that material allegations of the complaint are not true, is not new matter such as is required to be specially pleaded.</p> <p>Id. — Denial by Affirmative Allegations — Finding. —An issue may be taken upon a material allegation of the complaint by an affirmative allegation in the answer inconsistent with it; and a finding of affirmative facts which are inconsistent with an averment which the answer denies is a sufficient finding that the averment is not true.</p>