Mesnager v. Engelhardt

Citations

• 108 Cal. 68
• 41 P. 20
• 1895 Cal. LEXIS 823

Syllabus

<p>Husband and Wife—Separate Property of Wife—Void Grant by Husband—Right to Revoke Deed.—A husband, who has no authority from the wife, cannot grant a right to build a dám and make a ditch in a creek bordering on her land, and the wife is not bound to allow the maintenance of a dam in the creek upon her property against the construction of which she has protested, nor to allow the appropriation of water to which she is entitled by means of such dam.</p> <p>Id.—Diversion of Water—Change of Point of Diversion—Easement. Where the owner of a tract of land bordering upon a creek above land which is the separate property of a married woman diverted the water upon his upper land, and carried it by a ditch across her land under the grant of a right of way therefor, and a right to construct new ditches or pipe lines across her land, he is not entitled, against her protest, to enter upon her land to change his point of diversion, and to erect a dam upon her land under a void grant of such right executed by her husband alone.</p> <p>Id.—Ambiguity in Findings — Decree—Damnum Absque Injuria.— Where the court finds the existence of the right of way and the nature and extent of an easement to which the plaintiff is entitled for the purpose of transporting water across the land of defendants, and that the defendants interfered with plaintiff in the enjoyment of his easement, and by the decree he was given all the relief to which he was entitled, which adjudged him to have no right to build any dam upon the defendant’s land, the fact that the court also found that his crops would suffer damage from interference with the relaying of his water-pipes along his right of way and rebuilding his dam at the point of diversion, is not ground for a reversal of the judgment; but, so far as concerns any damage to his crops from the construction of the dam upon defendants’ land, the interference of the defendants therewith was damnum, absque injuria, of which the plaintiff has no just cause to