(64 Cal. 461)

WILCOX v. HAUSCH and others.

Filed January 22, 1884.

The diversion of water from a natural stream, on the part of one who has conducted some water to it, will be restrained at the suit of a riparian proprietor, unless the former show that he has not diverted from it more water than he led to it.

Department 1.

Appeal from the superior court of Tulare county.

This was an action brought to restrain the defendants from maintaining a dam in a creek passing through plaintiff's land, so as to cause a diversion of all the water of such creek. Defendants denied that this creek was a natural stream, or that any water flowed in it except such as was conducted to it by them. The court found that such creek was a natural stream, having a defined course and regular flow of water; that said defendants did lead more water to the stream than ordinarily flowed in it, but that the dam obstructed not only that amount of water but the whole natural flow of the stream. The court, therefore, granted the plaintiff a perpetual injunction prohibiting the diverson of any water.

Brown & Daggett, for appellant.

Atwell & Bradley, for respondents.

BY THE COURT. There was evidence to sustain the findings of the court. If it be conceded that, as against a riparian owner below, a person, not such, may turn into a natural stream water which would not naturally flow therein, and again divert the quantity of water which he led to the stream, the fact that he has conducted some water to it will not authorize him to divert all the water of the stream; and it is for him who has thus interfered with the natural flow to show that he has not taken from the stream more water than he led to it. Otherwise the plaintiff, riparian proprietor, is entitled to an injunction, prohibiting the diversion of any water.

Judgment and order affirmed.

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Where no points and authoritics are filed within the time allowed, judgment will be affirmed.

Department 1.

Appeal from the superior court of Sacramento county.

An appeal was taken from an order sustaining a demurrer to an indictment for arson. No points and authorities were filed in the


C. T. Jones and J. W. Carter, for appellant.

Atty. Gen. Marshall, for respondent.

BY THE COURT. No points and authorities have been filed in this case, although the time extended for that purpose has long since. elapsed. It is therefore ordered that the judgment be affirmed.

(2 Cal. Unrep. 251)

WILSON V. BAKER and others.

Filed January 26, 1884.

Where the evidence is insufficient, to support the findings the judgment will be reversed.

Department 2.

Appeal from the superior court of Stanislaus county.

This was an action brought by plaintiff, a creditor of one Love, to compel defendants, also creditors of said Love, to sign a memorandum of an agreement entered into between said Love and all his creditors, whereby he was to make an assignment for their benefit; and also to restrain defendants from further pursuing proceedings for the recovery of their indebtedness by attachment against said debtor's property. The court found that the defendants, through an authorized agent, had entered into such agreement, and had consented to dismiss their attachment and suit on condition that plaintiff also dismiss his suit against said debtor; that plaintiff performed the conditions on his part, but that defendants fraudulently refused to dismiss their attachment or join in an assignment until their claim had become a lien preferred under the statute. Defendants appealed from an order refusing to grant a new trial.

Roche & Desbeck, for appellants.

W. E. Turner and Schell & Treat, for respondent.

MYRICK, J. The evidence is insufficient to support the findings of the court below in the following particulars: In finding 8, that Caldwell was authorized to act for and on behalf of the defendants at the meeting of creditors, and by his acts to bind the defendants, and to enter into any agreement or contract with Love or his creditors; finding 10, so far as it is found that the defendants, or any person thereto authorized by them, made or joined in or ratified the agree-. ment set forth in said finding 10; the whole of finding 13; finding 14, so far as it states or infers that the defendants entered into any agreement; finding 17, so far as it is found that the defendants, at the said meeting of creditors, agreed to sign any agreement; finding 20, as to any fraud on the part of defendants.

The judgment and order are therefore reversed, and the cause is remanded for a new trial.

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(2 Wash. T. 22)

MILLER V. AUSENIG and others.

Filed July, 1880.

Evidence considered and held to justify the finding of the lower court, that a certain deed and bill of sale, absolute on their face, were in fact only mortgages.

Appeal from a judgment of the Second district court, entered in favor of the plaintiffs. The opinion states the facts.

William Strong & Sons, for appellant.

Robb & Fulton, for appellees.

HOYT, J. This is an action brought by the plaintiffs against the defendant for the purpose of having a deed of certain lands, and a bill of sale of certain personal property, made by the plaintiffs to the defendant, declared to be a mortgage, given for the purpose of securing to the defendant the repayment of a certain sum of money alleged to have been by him loaned to the plaintiffs, and for an accounting between the parties in relation to said alleged loan. The only point made by the counsel for the appellant in this court is as to the sufficiency of the proofs to warrant the court in finding that said deed and bill of sale were, when made, intended by the parties thereto as security for the repayment of a sum of money then loaned to the maker thereof, instead of an absolute deed and bill of sale, as they on their face purported. There is no question made as to the law applicable to the case, nor as to the claim of plaintiffs that the deed and bill of sale were each a part of the same transaction, and that upon the question of whether or not they were intended by the parties as absolute conveyances, as appeared upon their face, they must stand or fall together. The evidence in the case upon this one question of fact which we are called upon to decide is somewhat conflicting, and in some respects not entirely satisfactory to our minds; yet, when viewed in the light of the circumstances surrounding the case, we think that it sufficiently establishes the facts connected with the making of the instruments in question to enable us to apply the law of the case applicable thereto, and thereby determine the legal effect of said instruments.

At the time of the making of these instruments the land covered by the deed in question was about to be sold by virtue of proceedings taken to foreclose a mortgage thereon given by the said plaintiffs, and it is conceded by the defendant that the only consideration which he gave for the property described in said deed and bill of sale was the payment of the amount due upon the decree in said foreclosure

suit, and his agreement to allow the plaintiffs to remain in possession of the premises for one year. From which it follows that if the theory of the defendant as to this transaction be true, then the plaintiffs, for the use of said premises for a period of something less than six months, (for if the land had been sold under the foreclosure proceedings they would have had six months or more in which to redeem, during which time they would have been entitled to possession,) were willing to and did convey to him the right to redeem said premises during said period of six months or more, and also stock and other personal property, valued by them at about $800; and this, in the face of the fact, conceded by the defendant, that the use of said premises, with all of said personal property upon it, was only worth about $300 per year. Was such a transaction as this is claimed by the defendant to have been, such a one as plaintiffs would have been likely to have entered into, in the light of the circumstances above set forth? We think not. While, upon the other hand, the claim of plaintiffs, that the payment of said money by defendant was in the nature of a loan to them, which they were to repay, with interest, and that said deed and bill were given by them to secure such repayment, was, in our opinion, an entirely reasonable one, when we take into consideration the further fact, which fully appears in the case, that at the time of said transaction the plaintiffs and defendant were warm personal friends.

Now, interpreting the testimony upon the one question urged upon our consideration, in the light of the surrounding circumstances as above outlined, we are of the opinion that it sufficiently appears therefrom that the said transaction was not at the time intended or understood by the parties thereto as an absolute sale of said land and said personal property, but rather as a loan of said sum of money paid by defendant to redeem plaintiffs' said land, and the giving of said deed and bill of sale as security for the repayment thereof, with interest thereon. And the intention of the parties being as above stated, it is conceded by counsel, and such we understand clearly to be the case, that the law would make such instruments so given as security simply mortgages, however absolute they on their faces purported to be. It is therefore our opinion that the court below was justified, by the evidence in the case, in holding said deed and bill of sale (though absolute on their face) to be in fact only mortgages, and as such entitled to be treated; and as this is the only question raised here, it follows that the decree of the lower court must be affirmed, with costs.

Let the decree of the district court be affirmed, with interest, and a judgment entered here for the costs of this court in favor of said plaintiffs and against said defendant, and the cause remanded to the district court, with instructions to carry into effect the decree herein rendered in said court from which their appeal was taken.

GREENE, C. J., and WINGARD, J., concurred.

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