Sharp v. Hoffman

Citations

• 79 Cal. 404
• 21 P. 846
• 1889 Cal. LEXIS 740

Syllabus

<p>Riparian Rights — Irrigation — Custom — Priority on Right. — The question of riparian proprietorship is eliminated frdm a controversy over the use of water for irrigation between owners of lands crossed by a natural stream, when both owners admit upon the trial that irrigation in the neighborhood of the stream is necessary? that it is the general custom for the farmers in such neighborhood to divert the water for irrigating purposes; and that the defendant, the upper proprietor, had for twenty years used the water for irrigation, leaving only the surplus water to the plaintiff. Under such admissions, the question is one of priority of right; and the plaintiff could not he injured by deprivation of water that he was not entitled to use. It devolves upon the plaintiff to prove a right to use the waters of which he was deprived, and an injury resulting from interference with such rights.</p> <p>Order Granting New Trial—Setting Aside Verdict—Discretion.— The superior court may grant a new trial where, in its opinion, the verdict is contrary to the weight of evidence, and this court will not interfere with its discretion in so doing, except in extreme cases, or where it is apparent that the court below has proceeded upon an erroneous hypothesis.</p> <p>Evidence—-Cross-examination. — It is competent to ask any questions on cross-examination of a witness which have a bearing directly or indirectly upon any portion of his testimony in chief, or which test the credibility, knowledge, or recollection of the witness with reference thereto; and it is error for which a new trial may be granted to refuse to allow such questions.</p> <p>Instructions — Exceptions. — The instructions of the court below to the jury cannot be reviewed on motion for new trial or upon appeal, unless excepted to when given at the trial.</p> <p>Appeal—Argument—Reflections upon Trial Judge.—It is a reprehensible breach of duty for counsel to insert in their briefs in this court any reflections upon the