Summary
In Nevada County Sacramento Canal Co. v. Kidd, 37 Cal. 282, 304, 305, the Supreme Court stated that the trial court is not bound to give relief other than that specifically sought except in its sole discretion.
Summary of this case from Romanchek v. RomanchekOpinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 28 Cal. 673 at 683.
Appeal from the District Court, Fourteenth Judicial District, Nevada County.
The following was the original complaint in this action:
" The plaintiff, a body corporate under the laws of the State of California, created on or about the 28th day of June, A. D. 1851, under the name and style of 'The South Yuba Mining and Sacramento Canal Company,' but now exercising its functions and using the corporate name of the 'Nevada County and Sacramento Canal Company,' by virtue of a special Act of the Legislature of the said State of California, which was duly signed, and on the same day approved by his excellency the Governor of said State, to wit, on the 20th day of January, A. D. 1855, whereby the same became a law, said plaintiff in its capacity of a corporate body, and by its name, complaining, charges and avers that on and before, and for a long time prior to the 14th, the 15th and 16th days of February, A. D. 1855, the plaintiff was the owner in fee, as he is informed and believes, and had been in the peaceable and quiet possession of the following described sections, lots, pieces or parcels of land, enjoying the rents and profits thereof, to wit: the first commencing on the South Yuba River, four hundred and twenty rods above the summit of the gap which divides the south branch of the said Yuba from the waters of Bear River, and which summit is a part of a small valley reaching within eighty rods of the said Yuba River, and better known by the name of 'Bear Valley Gap.' Said point of commencement is designated by being a short distance above some falls or rapids in said river, and where a pine or fir tree had fallen, and on or about the said 14th, 15th and 16th days of February, A. D. 1855, did lie quite across the stream of the said South Yuba River, above the water thereof; thence down the east side of said river with its meanders three hundred and forty rods; and thence eighty rods or thereabouts into said valley to a cabin or small house erected by plaintiff; said section, lot, piece or parcel of land having a width of six hundred and sixty feet, more or less, for its whole length, with the bank of the river and the mountains on the north and northeast, and on the south and southeast, Bear Valley; said premises being situated in part in said Bear Valley Gap, and a gorge running down from the mountains on the right-hand side of said river, as the same is ascended from said gap, as he is informed and verily believes.
" The other section, lot, piece or parcel of land, adjoins the first above-described premises, commencing at said cabin or small house, having the same length and width, to wit, a length of four hundred and twenty rods, by a width of six hundred and sixty feet, more or less, and extending southwest into the said Bear Valley, and being a part thereof, as he is informed and verily believes.
" That by virtue of its ownership of said sections, lots, pieces or parcels of land, said plaintiff entered on said land with all and singular the appurtenances appertaining thereto, and was possessed thereof; and the said plaintiff being so possessed of said land and premises, caused levels to be taken, and a survey to be made for a flume, canal or ditch, and caused notices to be posted to the effect that plaintiff claimed all the waters of the South Yuba River for mining and other purposes, and thereupon plaintiff erected a cabin or small house, and commenced to work upon said flume, canal or ditch, and for a long time, to wit, from on or about the month of June, A. D. 1851, until on or about the 16th day of February, A. D. 1855, did work thereon by its representatives, agents and servants, and did enjoy the profits and revenues thereof, as he is informed and verily believes. And that the point above described, where said pine or fir tree had fallen and lay across said stream, was located, held, enjoyed and possessed by the plaintiff, as a location for a dam to turn the waters of the said South Yuba River into its flume, canal or ditch, and that upon said location and premises said plaintiff had expended large sums of money; that the defendants in the above-entitled cause afterwards, to wit, on or about the 16th day of February, A. D. 1855, with force and arms, entered into and upon the above-described two sections, lots, pieces or parcels of land, with the appurtenances belonging thereto, in the possession of said plaintiff, and the said defendants ejected said plaintiff out of the possession of the said two sections, lots, pieces or parcels of land, and out of all and singular the appurtenances thereunto belonging. And that said defendants did, on or about the 16th day of February, A. D. 1855, wrongfully and unlawfully, with force and arms, drive off the agents and servants of said plaintiff, who were then, in behalf of plaintiff, employed in the construction of the said dam which plaintiff was then building at the aforesaid point, for the purpose of diverting the waters of the stream of the said Yuba River, and that said defendants have, since said 16th day of February, constructed a flume, which runs from the point above described where said pine or fir tree lay across the said Yuba River, through the two sections of land above described belonging as aforesaid to plaintiff, southwest towards the summit dividing the waters of Bear River and Steep Hollow Creek, on the line surveyed through said lands of plaintiff, and upon which plaintiff has had his agents and servants employed in constructing its said flume, canal or ditch, and that said defendants unlawfully detain from plaintiff all said lots of land, and the appurtenances thereunto belonging, together with all the improvements made by said plaintiff as aforesaid, together with its line of survey, and have wrongfully and unlawfully, with force and arms, obstructed and prevented the erection of the works designed by plaintiff, thereby causing to plaintiff great damages and loss, to wit, damages in the sum of one hundred thousand dollars, and that said amount has accrued on account of said wrongful acts since the 6th day of March, A. D. 1855.
" Wherefore plaintiff brings this suit, and prays for a judgment for a restitution of all the above-described premises, and one hundred thousand dollars damages, together with costs and money expended, and disbursements, and for general relief."
The Court, on defendants' motion, struck out of the amended complaint, as irrelevant and redundant, the following:
" That said land and said point on said river was owned, possessed, and occupied by plaintiff, for the purpose of constructing a canal through and upon the same, to divert and carry the water of said river flowing down to said point into the mining region below said Bear Valley, to be used for mining and other purposes, and that plaintiff did locate and survey a line of ditch or canal for the purpose aforesaid, upon and through the land aforesaid, from the point aforesaid on said river, and located and occupied said point for the purpose of constructing a dam thereat and thereon, to divert all the water of said river at said point into the canal located by plaintiff as aforesaid. That having made said location of said claim and said canal, and having taken and acquired actual and peaceable possession of the premises aforesaid, plaintiff commenced the actual construction of a dam at the point aforesaid, for the purpose aforesaid, and the construction of a canal for the purpose aforesaid, on the line and upon the premises aforesaid, whereby plaintiff alleges that by reason of the matter hereinbefore stated it became entitled to the exclusive use and possession of the water flowing down said river at the point aforesaid, and the right to divert the same from its natural bed," * * * " and soon thereafter commenced the construction of a canal upon the line located by plaintiff as aforesaid, and through the land aforesaid, and the construction of a dam at the point aforesaid, for the purpose of diverting the water of said Yuba River into such canal, and continued such construction until they completed said dam and canal, the same being the canal known and called the South Yuba Canal, and diverted the water of said river at the point aforesaid by means of said dam and canal through said canal."
The amended complaint contained a prayer for an injunction. Defendantrecovered judgment, and plaintiff appealed and assigned as error the order of the Court striking out portions of the complaint. The complaint as left, after the Court had made the order striking out, stated a cause of action for recovery of possession of the land.
COUNSEL:
The complaint, though inartificially, or even imperfectly drawn, indicates distinctly enough the scope and purpose of the suit. The action is for a series of trespasses upon the plaintiff's lands and property, but mainly upon its water rights in and connected with the same, and especially its rights to appropriate and divert all the waters of the South Yuba River, for mining and other purposes, by and through a dam connecting with a ditch or flume in course of construction at and from a point on the river, and passing through and over the plaintiff's lands.
In this State the liberal exercise of the right of amendment of pleadings is deemed to be highly conducive to the full and prompt administration of justice, and is broadly sustained by this Court. A few cases will be cited: first, for the generaldoctrine, and next for the particular applications of it:
General doctrine: McMillan v. Dana , 18 Cal. 349, subd. 4; Roland v. Kreyenhagen , 18 Cal. 457; Pierson v. McCahill , 22 Cal. 130, 131; Lestrade v. Barth , 17 Cal. 289; Gillen v. Hutchinson , 16 Cal. 156, sub. fin.; Smith v. Yreka Co. , 14 Cal. 201, 202; Connolly v. Peck , 3 Cal. 82; Gallagher v. Delany , 10 Cal. 410; and see 12 Cal. 449.
Particular applications: McDonald v. Bear River Co. (15 Cal. 145, 149)--complaint held by this Court fatally defective as " looking to equitable relief only, and not sufficient to authorize a determination of the legal rights of the parties" (p. 148), allowed in this Court, upon remanding the cause, to be amended so as to obviate the defect. Connolly v. Peck (3 Cal. 75-82) to the same effect. Robinson v. Smith (14 Cal. 254): joint plea of Statute of Limitations amended on the trial, after it was held bad, by the filing of a separate plea. Tryon v. Sutton (13 Cal. 490, 493, 494): complaint on assignment of a mortgage by a married woman without her husband's concurrence; held fatally defective, but allowed to be amended.
E. Casserly and W. H. L. Barnes, for Appellant.
George Cadwalader, for Respondents.
It was a pure and simple complaint in ejectment, averring title and possession in plaintiff, an ouster and detention by defendants, and claiming judgment for restitution. Instead of a simple allegation of ouster by defendants, the complaint averred at length the manner of the ouster, or the intention of the defendants in seizing the land, etc. These comments were unnecessary and improper (Garrison v. Sampson , 15 Cal. 95; Boles v. Weifenback , 15 Cal. 144; Payne v. Treadwell , 16 Cal. 243), and could have been stricken out on motion (Coryell v. Cain , 16 Cal. 571); but they do not alter the nature of the action, which was simple ejectment to recover possession of certain parcels of land.
The amendments raise the question of the right to the use of the waters of the Yuba, and claim damages for their diversion by defendants. Now, the defendants could admit every material allegation of the original complaint, and it would not follow that plaintiff is entitled to use a drop of the Yuba water. The plaintiff may have owned the strip of land, as claimed, and the defendants, by prior appropriation, or subsequent appropriation and adverse use, may have acquired a right to the water. The numerous cases cited by appellant's counsel in their brief merely show that where there has been no gross abuse of discretion by an inferior Court in the matter of an amendment, the appellate Court will not interfere.
JUDGES: Sanderson, C. J. Sawyer, J., dissenting.
OPINION
SANDERSON, Judge
On petition for rehearing, Sanderson, C. J., delivered the following opinion, Currey, J., concurring:
A petition for rehearing has been filed in which it is suggested that in the interpretation of the original complaint in this case we have adopted the wrong rule of construction. We adopted the rule prescribed in the seventieth section of the Code of Procedure, which is in the following language:
" In the construction of a pleading for the purpose of determining its effects, its allegations shall be liberally construed with a view to substantial justice between the parties."
If the foregoing rule can have any application whatever it is to a case like the present.
The common law rule that a pleading must be taken most strongly against the pleader where the language used is ambiguous has not, as counsel seems to suppose, been forgotten by us; but we did not fall into the error of supposing that it had any application to the question presented by the record in this case. Where the pleader stands upon his pleading and maintains its sufficiency in law in the presence of a demurrer or other hostile attack, the rule to which counsel appeals with so much confidence undoubtedly applies. In such a case all doubts are to be resolved against the pleader. He asks no mercy and is entitled to no quarter. But that is not this case. Here the pleader confesses that his pleading is bad, and that it imperfectly and ambiguously expresses his meaning and intent, and he therefore appeals to the mercy of the Court to be allowed to amend it " in furtherance of justice," so as to present more clearly his cause of complaint. To such a case, the rule under consideration, which is a rule of war and not of mercy, can have no possible application; on the contrary, the utmost liberality consistent with the ends of justice, ought to be exercised by the Court.
But it is, in effect, further claimed that the rule in question ought to be applied to this case at least, because the plaintiff has allowed it to sleep in the Clerk's office for nearly ten years. If the case has been allowed to sleep to the prejudice of the defendants, the fault is theirs. They have had it in their power to force the case to a final result at any time, as much so as the plaintiff. Why the case was thus allowed to sleep is entirely unexplained by the record, and we are bound to presume that it was by mutual consent. Such being the case, neither party can complain of the delay, whether there was any good cause for it or not.
Rehearing denied.
DISSENT:
SAWYER
SAWYER, J., dissenting:
I dissent.