Ledu v. Jim Yet Wa

Citations

• 67 Cal. 346
• 7 P. 731
• 1885 Cal. LEXIS 639

Syllabus

<p>Water Rights— Appropriation —Statute of Limitations—Evidence in Rebut-tad. —In an action to restrain the diversion of water, tko plaintiff having shown a prior appropriation of the water right by himself, which the defendant attempts to defeat by the plea of the Statute of Limitations, should bo permitted to sho~ in rebuttal that the defendant before any bar of the statute could have attache bad acknowledged bis claim and sought to become bis lessee of the water right</p> <p>Id.—Adverse Possession—Instructions. — Where the defendant has pleaded adverse possession in himself, it is error to instruct the jury “that if they believe that the plaintiff was the first to appropriate and use the waters in dispute, and that his appropriation and use thereof was prior to that of defendant and those under whom he claims adversely to tho plaintiff, and that his possession was continuous, exclusive, and notorious, and that he has not parted with his right thereto or forfeited the same, they will find for the plaintiff,” for the reason that the instruction would authorize the jury to find for the plaintiff without considering the defense of adverse possession.</p>