McDonald v. Bear River & Auburn Water & Mining Co.

Citations

• 15 Cal. 145

Syllabus

<p>Plaiktiits file their bill in equity to enjoin defendants from diverting a certain quantity of the water of Bear river, alleging that their right to one thousand inches of the water of that stream, as against defendants, was adjudicated in a former action. In that action, which was trespass for the diversion of the water, it was alleged that this quantity of the water of the stream had been appropriated by the plaintiffs for mill purposes; that such quantity was necessary for their use, and that defendants had diverted the same, to their damage, etc. Plaintiffs had verdict and judgment for $21,800 damages. Held, that the averments are insufficient to entitle plaintiffs to an injunction; the scope of the bill being simply to enforce in equity plaintiff’s alleged right to one thousand inches of water, on the sole ground, that it was adjudged as their right in the former suit.</p> <p>Held, further, that plaintiffs should be permitted, if they desire, to so amend their complaint as to present for determination their legal rights, otherwise the complaint should be dismissed.</p> <p>A general verdict does not operate as an estoppel, except as to such matters as were necessarily considered and determined by the jury. A verdict is never conclusive upon immaterial or collateral issues.</p> <p>In an action to recover damages for the diversion of the water of a stream from plaintiffs’ mills, an averment as to the precise quantity of water required for the use of the mills, and to which plaintiffs claimed to be entitled, is an immaterial averment; and a recovery of damages would not establish plaintiffs’ right to the exact quantity of water claimed, so as to be res judicata in a subsequent suit.</p> <p>In such action for damages, no issue could be taken upon the averment as to the particular quantity of water diverted.</p>