Richardson v. Kier

By the Court, Sprague, J.: We discover no error in the instructions of the Court below, as given to the jury, at the request of plaintiff. Those to which exceptions were taken by appellant, and the giving of which are specified as errors on his motion for new trial, very fairly present the law applicable to the facts of the case, as announced by this Court on the former appeal. (34 Cal. 74.) The refusal of the Court to give the eleventh instruction asked by appellant, which was at the time excepted to by [266] appellant, is not contained in his specifications of error on motion for new trial; hence the ruling of the Court, in refusing such • instruction, will not be reviewed on appeal" from the order denying a new trial. And were such ruling properly specified as error on motion for new trial, it would be untenable, as the evidence fails to disclose facts to which such an instruction could be applicable. The ditch from Whisky Diggings Ravine through plaintiff’s lands to Coon Creek, seems, by the evidence, to have been claimed, adopted, and controlled by defendant, as a shorter or more direct passage for the natural waters of such ravine, as also for the water discharged into the ravine from- his ditch to Coon Creek, and having so adopted this artificial channel or outlet, he is responsible for any. damage occasioned to plaintiff’s lands by reason of his failure or neglect to keep such artificial channel in such state of preservation and repair as to prevent injury to plaintiff’s property while he so used and controlled the same. And if, during heavy rains or freshets, this artificial channel was not of sufficient capacity to contain all the natural water of said ravine, together with such additions thereto as were emptied into the same from defendant’s ditch, it was his duty to see that no more water entered the artificial channel than it could safely carry through to Coon Creek, without detriment or injury to plaintiff’s adjacent lands; and for any injury to the lands of plaintiff, caused by overflow of the waters entering this ditch, resulting either directly or remotely from the negligence of defendant in keeping the same in good repair, or in the manner of its use, while under his exclusive control, he is responsible in damages. We are entirely satisfied that the rights of appellant in this case were not prejudiced by the instructions of the Court below, which, taken together, presented the law of the case upon the evidence clearly and quite ^s favorably as he can justly claim. Judgment and order affirmed.