The record-union., 1891-03-19
that the proper Judgment was entered
and we advise that it be affirmed.
BELCHER, G.


and we advise that it be affirmed.
BELCHER, G.
We concur:
TEMPLE, c.,
VAN CLIEF, c.
THE COURT.
For the reasons given in the foregoing
opinion the judgment is affirmed.
Filled at Sacramento, March 10, 1891
IN BANK.
ROSE FOREMAN and FITz-
GERALD ROGERS,
Plaintiffs and Respondents. NJ 30,
JAMES h. BOYLE EFT AL,
Defendants and Appellants.
This is an action for damages for divert
ing the waters of plaintiffs and for an
injunction to restrain the defendants from
the further diversion thereof.
Among other things the complaint in
effect alleges that the West Branch of
Canyon Creek and Canyon Creek were
natural water courses, the waters of the
| former flowing into the latter. That the
plaintiff Foreman owns n tract of land
| situated upon the West Branch of Can
yon Creek, and also fifteen inches of the
waters Of said creek for the purpose of
That the plaintiff Rogers owns
tract of land situated upon Canyon
Creek and also thirty-five inches
of the waters of said creek for the pur-
pose OF irrigating his said tract Of land.
That plaintiffs, by means OF bitches
erected by them, respectively, carried said
waters from the aforesaid creeks over
and upon their tracts of land, That the
defendants, at point above the lands of
plaintiffs, diverted the said waters from
their natural channel, depriving said
owners thereof, and by such diversion
plaintiffs suffered damages in the sum of
s., 900.
a demurrer to the complaint was filed
upon the ground that there was a mis-
Joinder Of parties plaintiff and q mis-
Joinder Of causes of action. The de-
murrer was overruled; issue was Joined.
and upon the trial the findings OF the
court were IN consonance with plaintiffs
complaint, except as to the allegation of
damages, and as to that allegation the
court found that the plaintiffs had suf-
fered damage in the sum OF s..
The case comes before us upon the
judgment-roll.
1t viii be observed that the plaintiff
Foreman owns 4 tract of land, fifteen
inches of water, and the ditch which car
ries the wator from West Canyon Creek
upon her land. Her co-plaintiH, Rogers,
has no interest whatever in the land, the
water or the ditch. Likewise plaintiff
Rogers owns Il tract OF land (some dis
tance from Foreman's land), thirty-fiye
inches OF water and the ditch which car
ries the water from Canyon Creek upon
his land; and his co-plaintiff has no in
| terest in such land, water or ditch
These plaintiffs claimed in their COM
plant, and obtained by decree OF the
court, a joint judgment for damages
against the defendants.
1t is impossible to see how the plaintiffs
have any joint or common interest III the
damages recovered, or upon what legal
basis such damages could be apportioned
between them Respondents counsel
suggest that the plaintiffs are tenants in
common and the damages should be
apportfoned in proportion to the number
OF inches of water each owns. This can
not be the true rule, for it readily can be
seen that, for many reasons, the diversion
of the waters by defendants may have
caused plaintiff owning fifteen inches of
water far greater damage than would
have been entailed upon plaintiff owning
| thirty-tive inches of water
| Tenancy i'll common in bitches and
water rights is no unusual estate, but the
| cases relied upon by respondents to estab-
lish tenancy in common between the
plaintiffs in this action in the waters OF
a natural channel. under the surrounding
circumstances as depicted by the record
in this case, are not in point, for the facts
are essentially dissimilar.
1t seems to us that the demurrer to the
complaint should have been sustained
upon both of the grounds stated.
There was a misjoinder of parties
| plaintiff; the plaintiffs seek joint recov-
cry OF damages in which they have no
joint interest. (Tenant VS.. Pfister, 5l
Cal. 514.)
Two or more owners of mills pro-
PEELED by water are interested in pre-
venting an obstruction above that shall
interfere with the down-flow of the
water, and may unite in its restraint or
abate it as nuisance, but they cannot
hence unite in an action for damages, for
as TO the injury suffered, there is no COM
munity of interest. bliss on Code Plead
ing, Sec. 76.)
| There is q misjoinder of causes of action
and it is SO held in Barham VS.. Hostetter
| (61 Cal. 2I4.l This question is carefully
| considered in Blaisdell VS.. Stephens, "a
New. ID, and in the case OF George Miller
VS.. The Highland Ditch Company ct ais,
| Us Pac. II. 550.)
| But conceding the Judgment for dam
ages to be erroneous, the amount is
merely nominal and too trifing to justify
the reversal of the entire judgment.
| Let the Judgment be modified b5 strik-
! ing out the damages, without costs to ap-
| pellant, and in all other respects let the
| judgment be affirmed. GARoUTTE, J.
We concur:
De HAVEN, J.,
| MCFARLAND, j.,
| HARRISON, j.,
! PATERSON, j.,
SHARPsTEIN, j.,
| BEATTY, G. j.
"DoN'T feel WELL" and yet you are not
sick enough to consult doctor-we will
tell you just what you need. 1t is Hoods
Sarsaparilla, which viii lift you out of
that uncertain, uncomfortable, dangerous
condition, into state OF good health, con-
| fidence and cheerfulness.