Brown v. Kentfield

By the Court, Crockett, J.: 1. If the court erred in overruling the demurrer to the special defense set up in the answer, the error was immaterial, inasmuch as all the matters set forth therein were admissible in evidence, if at all, under the denials of the answer. The pleadings admit that Elk River was a navigable stream; and the gravamen of the action is that the defendants improperly and unreasonably obstructed it, and thereby flowed back the water over the plaintiffs land, whereby he suffered a special damage. Under the denials of the answer, it was incumbent on the plaintiff to prove that the obstruction was improper and unreasonable, and that he suffered a special damage thereby. It was, of course, competent for the defendants to rebut proof of that character, by showing that the obstruction was not unreasonable, and that it resulted from a proper and lawful exercise by the defendants of their right to float saw-logs down the stream. The special defense was merely a statement of facts relied upon by the defendants as showing that the obstruction was not unreasonable; and if these facts constitute a valid defense, they could have been proved under the denials of the answer, and need not have been specially averred. The error, therefore, if it be one, was immaterial. 2. There was no exception which we can notice, by the plaintiff, to the general charge of the court to the jury, or to the instructions given on the request of the defendants. At the close of the charge and over the signature of the judge, is a statement in these words: “The foregoing instructions were given by the court, to which the plaintiff excepted,” and there is a similar memorandum at the foot of the instructions given on the request of the defendants. If this can be deemed a bill of exceptions for any purpose, [132] the exception was too general. It does not state that the exception was taken when the ruling was made, nor even before the verdict; nor does it specify that the exception was to each or any particular portion of the charge; but went to the charge as a whole. We have repeatedly held that a general exception of this kind to the charge or instructions given, will not be noticed here. (Payne and Dewey v. Treadwell, 16 Cal. 220; Hicks v. Coleman, 25 Id. 146; McCreery v. Everding, 44 Id. 249.) 3. Certain instructions requested by the plaintiff were refused; and though no formal exception to this ruling appears in the record, we think the omission is supplied by the stipulation of counsel. But none of the evidence is before us; and in its absence we cannot say but that the instructions were properly refused because of an entire lack of evidence on which to base them. Error will not be presumed, but must be shown affirmatively. Judgment affirmed. Mr. Chief Justice Wallace did not express an opinion.