Opinion
Department One
APPEAL from a judgment of the Superior Court of Siskiyou County. J. S. Beard, Judge.
COUNSEL:
James F. Farraher, and John H. Magoffey, for Appellants.
Gillis & Tapscott, Warren & Taylor, I. A. Reynolds, and George D. Butler, for Respondents.
JUDGES: Garoutte, J. Harrison, J., and Van Fleet, J., concurred.
OPINION
GAROUTTE, Judge
This is an action brought to enjoin the defendants from placing a dam in the waterway known as Oro Fino creek, and for damages occasioned by such obstruction. Defendants made denials of the allegations of the complaint, and also filed a cross-complaint asking for an order restraining plaintiffs from the improper use of Oro Fino creek, in covering the dumping ground of defendants with debris in the nature of tailings. Judgment went for plaintiffs, and this case is before us on the pleadings, findings of fact, and judgment.
A certain mining claim of plaintiffs is described in the complaint as "the island." The finding of fact made by the trial court describes a certain piece and parcel of mining ground owned by plaintiffs, by metes and bounds. Appellants now insist that there is a variance between the pleading and the finding as to the particular tract of mineral ground covered by these descriptions. Upon inspection of the two descriptions no variance is apparent. Both descriptions may cover the same tract. There is nothing inconsistent in the two to prevent it. The evidence taken at the trial is not before us; and upon the face of the pleading and of the finding no variance is shown. Error to invalidate the judgment cannot be presumed.
Objection is made by appellants to a finding of fact to the effect "that plaintiffs ran, without the consent of defendants, about three hundred inches of water from the Samuel R. Gardner mining claim, after Gardner's use of the water, through plaintiffs' flumes and into the waterway of Oro Fino creek." This finding of fact is possibly outside of the material issues in the case. By their cross-complaint appellants make complaint of the tailings and debris plaintiffs were dumping upon their ground. That is the issue upon which they sought relief. Water is not tailings and debris, and the right of plaintiffs to pass this three hundred inches of water over their claim and into Oro Fino creek is not presented by the pleadings as a cause of action. Defendants by their brief insist that such act of plaintiffs amounts to a substantial increase of the servitude resting upon their lands, but, as suggested, the character and nature of the servitude resting upon their lands in favor of plaintiffs is not the subject matter of the litigation, and is outside the pleadings. Especially must this be so as to any mere question pertaining to the amount of water passing from plaintiffs' land into the Oro Fino creek.
By this judgment the trial court gave the plaintiffs the relief sought, and denied defendants the relief asked by their cross-complaint. The court did not stop here, but proceeded to prescribe the line of conduct to be followed in the future by all parties to the litigation as to the manner of dealing with the tailings of their respective mines, and as to the use of Oro Fino creek, and the pro rata expense of keeping that creek in condition for the purpose of carrying off the tailings of these mines. Those matters are not involved in the litigation; no such relief is sought by the pleadings.
All those directions and decrees set out in the judgment, embraced in folios 251 to 254, inclusive, as appears by the transcript, are stricken therefrom, and the judgment is modified to that extent. As so modified, it is ordered that the judgment be affirmed.