Weimer v. Lowery

Citations

• 11 Cal. 104

Syllabus

<p>In an action to abate a nuisance, caused by the running a ditch for the conveyance of water across the land of the plaintiff, the defendants set up in their answer, among other things, the following : “ That said tract of land is situated in the heart of the mineral regions of said State, and is a part of the public domain belonging to the government of the United States, and that said government has never granted or conveyed the same, or any part thereof, to the said plaintiff.” “ They further say that their said ditch was constructed in the summer of 1855, and has been used ever since, and still is, for the purpose of conveying the waters of the South Fork of the American river from a point about five miles above said land to gold mining localities lower down, and in the vicinity of said stream, there to be used for gold mining purposes; that the same is fourteen miles in length, and was constructed for the purposes aforesaid at a cost to said defendants of about $20,000which allegations were stricken out, on motion of plaintiff’s attorney : Held, that they were properly stricken out, as irrelevant; for, if trne, they constituted no defense to the action.</p> <p>The statute making possessory rights of settlers on public lands for agricultural or grazing purposes yield to the rights of miners, has legalized what would otherwise be a trespass, and the act cannot be extended by implication to a class of cases not especially provided for.</p> <p>A person has no right to construct a ditch through the inclosure of another without his consent.</p> <p>A new trial will not be granted on the ground of newly discovered evidence, which is alleged to be a deed, recorded in the County Kocorder’s office a year before the trial, and the record of a judgmentin the same Court in which the cause was tried.</p>