Feely v. Shirley

Decided April 15, 1872

California Supreme Court · decided 1872-04-15

The complaint averred that the plaintiff was the owner and in possession of a ditch and flume, constructed for conducting water, and that he had for a long time been conveying water in the same for irrigating his land, and that the defendant wrongfully and unlawfully pulled down and destroyed the flume and diverted the water. There was a prayer for an injunction and for judgment for damages.

Cited by 2 later decisions — most recently December 1898

2 state decisions

Relies on Dimick v. Campbell · More v. Del Valle

Good law ✅— No negative treatment on recordhow we know

Decided 1872-04-15

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¶1By the Court,

Niles, J.:

¶2The ruling of the Court in striking out a portion of the answer cannot be reviewed upon this appeal, since it forms no part of the judgment roll. (Dimmick v. Campbell, 31 Cal. 238; Moore v. Del. Valle, 28 Cal. 174.)

¶3The motion for a nonsuit was properly denied. The breaking of the flume was distinctly alleged in the complaint, and the answer took issue upon the wrongful character of the act merely, but did not deny its commission. The breaking was, therefore, an admitted fact; and, conceding the plaintiff’s light of property in the flume, no proof of *371the breaking was requisite to establish his right to recover at least nominal damages.

¶4The testimony in the case was conflicting, and there appears sufficient testimony to support the findings of the Court upon all the issues made by the pleadings.

¶5Judgment and ordér affirmed.