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And he said: "We can't spare even they were there, how many there were, or one man.' I said: 'How long will you be how long they remained, the evidence does busy? Ile said: 'About six days or a week.' not show, and, assuming that the court was I said: “Isn't there any one who can give : required to accept this testimony, it was me any relieł?' And he said: You go up to too indefinite and uncertain to be given any the home ranch and see Mr. Gird.' That is serious consideration. If it be conceded that about the way they kept me going from one the mere presence of these (attlewhich is fellow to another. Mr. Gird was connected practically all that was proven relative to with the company. I went to the home ranch, them--damaged to some extent the fields of and told the same thing to Mr. Gird, and plaintiff, still the court was Warranted unwhen I got through I received information der the evidence in finding that it was too that Mr. Steele was the man to see. I in- trivial and inconsequential to affect the subquired where I could find Jr. Steele. The stantive damage proven to have been occainforination was that Mr. Steule was in Mex- sioned through the continuous trespassing ico, and I didn't go any further. After all of large numbers of the cattle of defendant. these complaints occasionally the men would i Now, as to the next point-the sufficiency come up and take out a few and put them of the evidence to sustain the finding of the over the fence, and they would be back be- court as to the various amounts in which fore the night, as a rule, and bring some more the plaintiff sustained damage under the with them." While this is not all the evi-separate counts of his complaint. And first dence bearing on the question, it was enough as to the damages allowed for the destructu warrant the court in its finding that the tion of the grain and pasturage. I'laintiff, defendant liad neither taken sufficient precau- who was a practical farmer, as well as a tions to prevent the trespassing of defend- ! dairyman, testified as to the first count that ant's cattle upon the preinises of plaintiff, the damage he sustained by the trespass of or exercised due diligence in removing them the cattle was the destruction of a nine-acre when they were cloing so.

field of growing barley, and fixed the amount We approach now the next point urged of his damages at $175, based upon the apby the appellant, and to which its argument pearance of the grain and surrounding conon this appeal is mainly addressed, namely, ditions, and the probable yield of his per that the finding of material injury suffered acre, and its value per ton if it had been by plaintiff through the trespassing of these permitted to mature and had been harvested. cattle and the amount of damages found to He testitied that the probable yield of the field have been sustained are not justified by the in hay would be 15 tons of the value of $10 evidence. As to the material injury suffered per ton. The court originally found on this by plaintiff, there cannot be the slightest | basis the damage to be $150, but upon the question under the evidence. It showed. as motion for a new trial, it being called to the far as the grain and feed upon the fields attention of the court that hay worth $20 of plaintiff were concerned, that such fields had been taken from this tract by plaintiff, were depastured, or the feed thereon destroy- the damages on this count were reduced to ed, by the constant incursions of these cat- $130. As to the field described in the second tle of defendant upon the premises, and it count, plaintiff testified that the grass and equally showed that the destruction of his verdure there (lestroyed by the cattle of the fences was I kewise occasioned loy them. It defendant was of the value of $720. Another would be a waste of time to discuss the evi- witness testified that the value of the feed dence in the record upon these subjects, as on this 120-acre tract for dairying was worth it completely sustains the findings of the $1 per head of stock per month, and that court upon them.

it would sustain at least 60 head of cattle The appellant, however, insists that the the year round. This would figure $720 per evidence showed that other cattle besides annum as the value of the pasturage, but, those of defendant trespassed upon the fields as the plaintiff pastured the tract for three of plaintiff, and that the owners thereof were months, the court made a deduction of $180 responsible for some of the damage Ocel- from that sum. The 1.300-acre tract. desioned by plaintiff, and that the court was scribed in the third count, plaintiff had connot warranted in finding that the injuries : templated using for the conduct of his dairy sustained were the result of the trespass of business and for dairy purposes, and, with defendant's cattle alone. While some 2: wit- ' that object in view, had erected necessary nesses were called in the case on behalf of structures thereon. Ile testified that on this both sides—ersons in charge of the cattle tract was the best pasture feell known in of plaintiff and those of defendant, men riil- that section. It proluced the best milk and ing the ranges caring for the stock, repairing the best returns. lle was feeding on this fences, and driving out the cattle of defend- tract and milking 100 head of cows, selling ant-only three testitied that any other stock the milk from them under contract in Los save those belonging to either plaintiff or de- Angeles at a net profit of $ 1.50 per month. fendant were ever seen in the fields of plain- The feed on this range woull support these tiff. These witnesses testified that they each i cows for three months, and, after they were ou one occasion saw a few head there. When i pastured there a month, the depredations of defendant's cattle commenced, resulting in was being offered under it. While parties the total destruction of the feed to plaintiff, have a right to insist that damages shall be and he estimated his damages at $900, on the measured by a recognized legal standard, erbasis of the net profits which he would have ror cannot always be predicated upon failobtained from the sale of milk during these ure to do so. There is no rule of practice two months-$150 per month-had the pas- which precludes them from trying the questurage not been destroyed by the trespass. tion of damages on any theory they see fit. Another witness testified that the net re- They may adopt any rule which they deem turns from milk would be $4.50 per head for proper, and courts will not interfere of their the same time, or $150 per month. The court own motion to compel the adoption of a rule allowed damages on this basis for $900.

contrary to that which the litigants are satisIt is claimed that this evidence affortled no fied to accept. If they are satisfied, the court proper basis for the allowance of damages. will be. When they do adopt such a rule, l'pon the record, however, we do not see they are bound by it, and neither one will be how the appellant can be heard to raise the subsequently permitted to question his own question whether it presented the proper bas- conduct relative to it. This is the situation is or not. This case was tried in the lower here. The defendant acquiesced in the corcourt by counsel for defendant other than rectness of the standard adopted by plainthose representing it on this appeal. The tiff. It is to be assumed that defendant complaint set forth in the several counts deemed tlie rule which was followed as favthe nature, character, and amount of da m- orable to itself as any other which it might ages sustained by plaintiff, and the court suggest. In any event, it made no objection found that plaintiff had been damaged by the to the evidence presented under it, suggested trespass on his property as alleged and the no other or better rule, and examined the witextent of that damage. The plaintiff present- nesses on the theory that it was the correct ed the evidence as to damages to which we one. Under these circumstances defendant have referred upon the theory that he was is concluded from raising any question as to adopting and following the proper and legal the sufficiency of the evidence to sustain the rule for establishing them. No objection was damages on the ground that the rule adopted made by defendant to the introduction of for the measurement of them and under any of the evidence, nor was it suggested by which the evidence was received was not the defendant until after judgment and on the correct one. The evidence which was premotion for a new trial that the rule which

sented on behalf of plaintiff was sufficient to was adopted by plaintiff was not the proper sustain the findings of damages under the or correct one for the measurement of dam- rule adopted and acquiesced in by defendant ages.

Not only was no objection then made for ascertaining them. This being true, the or a different rule suggested, but counsel for contention of appellant, then, practically defendant, though not introducing any evi- amounts to a claim that the evidence did not dence on the subject of damages, cross-ex- justify these findings because, if the correct a mined the witnesses of plaintiff on the mat- rule for measuring damages had been adoptter of damages testified to by them with a

ed, the evidence received would not have view of reducing the amount claimed. The

been competent to prove them. But, if the failure of defendant to object to the evidence, correct rule was not being followed, defendand defendant's cross-examination of the ant should have objected to the evidence and witnesses, was equivalent to a concession insisted on the true rule being adopted, and, that the evidence was competent on the ques- if the objection was overruled, have excepted tion of damages and an acquiescence in the and assigned the ruling as error, and based theory of plaintiff that it was presented un- his motion for a new trial upon that ground. der a correct rule for proving them. This To claim now, under a specification of insufwas in effect an acceptance of the evidence ficiency of evidence, that the evidence did as competent upon the subject of damages

not justify the finding of damages because and that the correct rule for their measure- it was admitted upon an incorrect theory as ment was being followed. If, in the opinion to the proper rule for measuring them, is, in of defendant, the rule adopted was not the effect, to assign the admission of the evicorrect one, it was defendant's duty to have dence as error of law, a matter which, even objected to the evidence offered under it and had an objection, and exception been taken, to have insisted upon the proper rule being could not under any circumstances be preapplied. This would have given counsel for sented or considered under a specification of plaintiff, if he was pursuing the wrong course, insufficiency of evidence. As the rule adoptan opportunity for rectifying his mistake, or, ed by plaintiff for the measurement of damin the event of dispute between counsel as to ages was acquiesced in by defendant, no obthe true rule, would have afforded an oppor- jection raised by it to the competency of the tunity to the court to declare it. This coun- evidence given under it, and, as that evidence sel for defendant did not do, but, on the con- fully sustains the findings, the defendant is trary, ta citly conceded that the correct rule concluded by its conduct from raising any was being followed and competent evidence question of the sufficiency of the evidence when tested by some other and different rule

(151 Cal. 581) than the one adopted and acquiesced in upon MAXHA v. UNION FERTILIZER CO. the trial. In this view, whether the rule

(L. A. 2,011.) adopted for the ascertainment of damages (Supreme Court of California. Aug. 1, 1907. was the correct one or not, we are not called

Rehearing Denied Aug. 28, 1907.) upon to consider. It was the one adopted 1. PLEADING-AMENDMENT OF ANSWER-LEAVE and acquiesced in by both parties and follow.

OF COURT.

Code Civ. Proc. $ 472, provides that any ed by the court, and neither of the litigants

pleading may be amended once by the party of can be lieard after judgment to question its course and for cause at any time before answer correctness, or the competency of the evi- or demurrer filed, or after demurrer and before dence introduced under it. Gooddale v. West,

the trial of the issue of law thereof, by filing

the same as amended and serving a copy on the 5 Cal.- 339, 341; McCloud v. O'Neall, 16 Cal.

adverse party, who may have 10 days thereafter 393, 398; Janson v. Brooks, 29 Cal. 214, in which to answer or demur to the amended 223; Bullard v. Stone, 67 Cal. 477, 482, 8 Pac. pleading; that a demurrer is not waived by fil

ing an answer at the same time, and, when de17; Storey y. Nidiffer, 146 Cal. 549, 552, 80

murrer to a complaint is overruled and no an. Pac. 692.

swer is filed, the court may allow an answer on · Appellant attacks the further findings as terms, etc. Held, that such section only perto the loss of 10 head of cows by plaintiff mits an amended answer to be filed before a de

murrer to the original answer is filed, or while and the destruction of his fences through the the issue of law raised by the demurrer thereto negligent trespass of the cattle of defend- is undisposed of, and that an amended answer ant. As to the cows: These were part of a

as of course cannot be filed after a demurrer to

the original answer has been disposed of, or herd of 62 being pastured by plaintiff on the after the time within which plaintiff might have 120-acre tract. There can be no question as demurred, but did not, has expired, when the to their value as found by the court, and the amendment can be allowed only by stipulation

or leave of court. only question is whether the evidence war

[Ed. Note.-For cases in point, see Cent. Dig. ranted the court in finding that through the

vol. 39, Pleading, $8 705, 768.] negligence of the defendant in permitting its

2. SAME-LEAVE TO FILE--DISCRETION. cattle to trespass on this field the plaintiff A cause was set for trial in June, 1905, on lost them. It is not claimed that the de- the original pleadings, and continued on defendfendant would not be liable if the evidence

ant's application until August 14th, when de

fendant promised to be ready for trial. On that so showed, and we think it did. We have

day defendant first moved for leave to amend already referred to the evidence which justi- its answer, the result of which would have been fied the court in finding that the cattle of de- to have required a continuance of the cause, fendant were negligently permitted to break

because the proposed amendment presented ad

ditional issues. There was no showing as to down the fences and trespass upon the ser- why the application was not made earlier, and eral fields of plaintiff described in the com- it appeared that matters sought to be presented plaint, and no further discussion of that

in the amendment were known to defendant in

June. Held, that the refusal of the amendment matter is necessary. As to the escape of the

was not an abuse of discretion. Cows in question, it appears that they were Ed. Note.For cases in point, see Cent. Dig. being pastured with the rest on this tract vol. 39, Pleading, $ 601.] when the several incursions of defendant's 3. SHIPPING CHARTER PARTY BREACH BY cattle upon it commenced; that defendant's

OWNER.

Defendant chartered a vessel for a voyage cattle would break in and herd and feed

to Magdalena Bay and return to San Diego with plaintiff's cows; and when run out with a cargo of guano, plaintiff, the owner, to would take the cattle of plaintiff with them; accompany the vessel. This requirement was that while the cow's would run out with the

changed, and, when the vessel was off Ensenada,

plaintiff boarded her, and directed the captain wild cattle they would not herd with them,

not to put into that port, as he had been directand usually could readily be got together for el by defendant's agent. It was not shown why plaintiff to put them back in the field. While

defendant's agent desired the vessel to enter En

senada, nor that he had any business there, nor no one saw the cows leaving the field of

that the captain informed plaintiff that he had plaintiff, still the court was warranted from orders from such agent to enter that port. this evidence, and the other circumstances

Held, that plaintiff's orders to the captain not disclosed, in reaching the conclusion that

to enter Ensenada did not constitute a breach

of the charter. these cow's bad mingled and gone with defendant's trespassing cattle, and been lost

In Bank. Appeal from Superior Court, Los in the hills of the Chino range. After he

Angeles County; Walter Bordwell, Judge. missed them plaintiff asked permission of de

Action by Frank Manha against the Union

Fertilizer Company. fendant's superintendent to search for them

From a judgment for on the Chino ranch, and was refused.

plaintiff, and from an order denying defendAs to the destruction of the fences of plain

ant's motion for a new trial, it appeals. Aftiff and the damages therefor as found by

firmed. the court, the findings in both respects are Grant Jackson and George Fuller, for apsustained by the evidence.

pellant. Powers & Holland for respondent. The judgment and order appealed from are atfirmed.

LORIGAN, J. This suit was brought to re

cover the sum of $590 for work and labor We concur: McFARLAND, J.; HEN- performed by the plaintiff at the request of SHAW, J.

the defendant, and for the use and hire by the defendant from plaintiff of that certain had been filed without leave of court, and boat known as the schooner "May" for a without authority of law; second, that the period of 59 days from the 11th day of Sep- serond amended answer and counterclains tember, 1904, to the 9th day of November of changed the issues made in the action; and, the same year. From the answer and the third, that the plaintiff was taken by surevidence it appears that plaintiff's action is prise. As the order striking out the answer based upon the written agreement attached and counterclaim was general, it must be! to the answer made between the plaintiff and sustained if any of the grounds urged in

1 one Beermaker, agent of the defendant, for support of it were tenable. We shall not disthe hiring of plaintiff's power schooner May cuss the merits of the last two grounds, befor a voyage to Magdalena Bay, stopping at cause the order was properly based on the any place or island designated by said Beer- first. The position of the appellant is that maker, and to return to San Diego with a under section 172, Code Civ. Proc., he had an load of guano. The rental agreed upon was absolute right to file an amended answer at $10 per day, and by the terms of the contract any time before trial of the cause. This, the plaintiff was to go with the boat as however, is not a proper construction of the engineer and to furnish one man as sailor; section which only permits an amended ansaid Beermaker furnishing all provisions, oil swer to be filed before a demurrer to the for engine, captain, and two sailors. The original answer is filed, or while the issue of schooner on the 11th day of September, 1904, law raised by demurrer thereto, is undisposcleared from the port of San Diego for that ed of. An amended answer "as of course" of Ensenada, but on arrival there the plain- cannot be filed after a demurrer to the tiff was arrested by the Mexican authorities original answer has been disposed of, or after for an alleged criminal offense, and the the time within which the plaintiff might schooner also taken into custody. She was, have demurred, but did not, has expired. It however, released at the end of five days, and can thereafter only be allowed upon stipulait was found that under an arrangement be- tion, or by leave of the court. This identical tween the plaintiff and Beermaker, by which question was before this court in the case the latter waived the defendant's rights to of Tingley v. Times Mirror Co. (Cal.) 89 Pac. require the plaintiff to accompany the schoon

n- | 1097, decided since the appeal in the present er, she proceeded on her voyage, under the case was taken. We there construed the secterms of the contract as thus modified. The tion adversely to the position assumed by apvoyage was completed on the 9th day of pellant, and as supporting the view taken by November, 1904, and it is found by the court the trial court, and we refer to the decision that defendant, during the period between in that case for a more extended presentation the date of her sailing, September 11, 1901, of our views upon the subject. and the date of her arrival, had and used The amended answer having been stricken the schooner under said contract for a period out, appellant then moved the court for of 39 days. Judgment was accordingly ren

leave to file it, which was denied, and this dered for the sum of $390 less the sum of

ruling is also assigned as error. The original $50 already paid, and $25.75 expenses for re

answer, after denying the allegations in the pairs incurred by the defendant. The de- complaint, set up a counterclaim for (lamfendant appeals from the judgment, and

ages alleged to have been sustained by the from the order denying its motion for a new

failure of plaintiff to make the voyage protrial.

vided for in the contract. The second amendThe first error claimed to have been com

eil answer asked to be filed set up the admitted by the trial court was in striking out, ditional defenses that the vessel was unseaon motion of plaintiff, an amendel i swer worthy, and that plaintiff took forcible posand counterclaim filed by defenlant. It is session of it on the high seas, and refused to pears that the defendant filed its original return it to defendant. Also various counteranswer and counterclaim on December 24, claims were set up for amounts paid and 1904, and the cause was set down for trial on expenses incurred by defendant relative to June 16, 1990.), but upon the application of the voyage and resulting from its alleged defendant, made on that day, and over the abandonment by plaintiff. Whether the court oljection of plaintiff, the trial was continued should allow this amended pleading to be until August 14, 1905, counsel for defendant filed rested in its sound discretion and the announcing that he would be ready for trial order of the court refusing it could only be on that date. On August 1, 1907, without reversed because of an apparent abuse of it, leave of the court, defendant filed an amenilai and the record here discloses no such abuse. ed answer to which plaintiff demurred. Aft- i The cause was set for trial in June, 190.5, er this demurrer was filed, detendant, still under the original pleadings, and continued without leave of the court, served and filed a on the application of defendant until Jugust second amended answer, both of whiclı, on! 14, 1903. No intimation was given then by motion of plaintiff made on August 14. 1991.3, defendant that any change in its pleadings the date fixed for the trial, were stricken were contemplated. On the contrary, its out. The grounds of the motion were, first, counsel state that he would be ready for that the amended answer and counterclaim trial on the date to which a continuance was

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lad. On the day for which the trial was at all discommoded or inconvenienced by the last set he moved to be allowed to amend, failure of the vessel to land at Ensenada. the result of which allowance would have She was not returning with any cargo which been as asserted by plaintiff—and which was necessitated her entering or clearing at that no doubt true to work a further continu- port. Neither had Beermaker told plaintiff ance in the cause. Yo showing whatever that he wanted the vessel to put in there on was made why the application had not been lier return; nor does it appear that, when the made earlier. The absence of such a show- plaintiff boarded the vessel outside of Ening would of itself have sustained the order senada, the captain in charge gave him any of refusal. A party is entitled to have a information that he had been instructed by cause tried at the date for which it is set,

Beermaker, or any one else, to enter the unless some satisfactory reason is presented jort of Ensenada. It appears only that the for its postponement. An application for capitain contemplated doing so, but that leave to amend a pleading, which, if granted, plaintiff persuaded him to proceed directly will warrant a continuance of a trial without to San Diego, her home port, instead. Why any showing why the application was not the captain wanted to put in to Ensenada made earlier, is sufficient ground for refusing

does not appear, but, whatever the reason to allow it. Not only was there no showing Was, the evidence does not disclose that nalle in behalf of the application, but from

either he, or any one else, informed plaintiff in affidavit made by the manager for appel

that he liad orders from Beermaker to do so. lant in support of its application for a con

Under the circumstances, it cannot be said tinuance of the trial on June 16, 1:30), it ap

that plaintiff broke up the voyage or retook pears that defendant had knowledge then of the boat without the consent of defendant bepractically all the matters set forth in its

fore the voyage was completed, or that the amended answer and counterclaim, which on evidence did not show that it was completed August 14, 1905, it asked leave to file. C'nder under the contract as found by the court. all these circumstances, there was no error

We have considered the points made by the on the part of the court in refusing to allow

appellants relative to the admission and rethe amendeil pleading to be filed on the day

jection of testimony, and are of the opinion last set down for trial of the cause. Asicle

that no material error was committed in that from this claim relative to the ruling of the

respect. Other points are made in the case. court upon the pleadlings tendered by appel

but we do not think they are of any merit lant, it is insisted by it that the evidence

or that they require particular discussion. did not justify the findings in favor of plain

The judgment and order appealed from are

affirmed. tiff. The court found the facts as we have heretofore recited them. Some of them were not denied, and, as to those which were, it

We concur: SLOSS, J.; SHAW, J., is only necessary to say that the evidence

ANGELLOTTI, J.; LIENSHAW, J.; MCFARwas conflicting, and the court accepted that

LAXD, J. offered on behalf of plaintiff. It is particularly insisted, however, by ap

BEATTY, C. J. I concur. As to the right pellant that the finding of the court that the

of defendant to file an amended answer at voyage under the contract was completed

any time before demurrer filed, it is sufficient on the 9th day of November, 1904, is not

for the purposes of this case to say that after supported by the evidence. The position of

an answer has been filed, and the issues so defendant in this regard is that, when the

formed have been set for trial on a day vessel was about to proceed on its way back

certain, with the knowledge and acquiescence from Magdalena Bay to San Diego, the cap

of the defendant, he cannot, on the eve of the tain thereof was given instructions by Beer

trial, file an amended answer, raising new

issues, without leave of the court. To so maker to put in to Ensenada ; that when the vessel was off that port on the 7th or 8th of

much qualification the general language of

section 172, Code Civ. Proc., must be subject, November the plaintiff, who had remained in the vicinity of Ensenada while the vessel

and perhaps it is the only qualification we proceeded to Magdalena Bay, came out in a

are authorized to impose. boat, boarded her, and directed the captain not to put in to Ensenada, but to sail directly

(151 Cal. 587) for San Diego, which he did, arriving there on November 9th, but, when plaintiff boarded

GUTIERREZ et al. v. W’EGE. (L. A. 1.813.) the vessel, it was on its way home, and its (Supreme Court of California. Aug. 5, 1907.) voyage had already been long extended be- 1. WATER COURSES - RIPARIAN OWNERS yond the time contemplated in the contract RIGHT OF DIVERSION - EVIDENCE – FINDof the parties. Beerınaker was not on the

INGS.

Where in a contest between riparian ownvessel. He had remained at some point in ers as to their respective rights in a creek there the vicinity of Magdalena Bay. No reason was evidence that, notwithstanding defendant's was suggested why Beermaker wanted the

diversion of a miners' inch of the waters through

a pipe, there was always water flowing down boat to put in to Ensenada. It does not ap

onto plaintiffs' land, the court properly found pear that he had any business there, or was that defendant had not acquired an adverse right

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