Atkinson v. Amador & Sacramento Canal Co.

By the Court : Among other instructions asked by the defendant and refused by the Court, was the following: “ The jury, in estimating all damages done to the land known as the Clark Ranch, must exclude from consideration any damage or injury done prior to the first day of January, 1874. Whatever injury was done before that time cannot be recovered in this action.” The original complaint was filed on the 30th day of March, 1875, but in that complaint no cause of action founded upon injuries alleged to have been done to the “ Clark Ranch ” was set forth. In the amended complaint filed January 3rd, 1877, the injury alleged to have been done by the defendant to that ranch was for the first time counted upon, and damages therefor claimed. The amended complaint, in so far as it counted upon the injury done to that ranch, was the introduction of a new cause of action; and against which the defendant had the right 106 to plead, and did plead, the Statute of Limitations. In view of this plea upon the record, the plaintiff in adducing the evidence in support of his case as to the “ Clark Ranch,” should have confined himself to proof of injuries, if any, done since the third day of January, 1874; and had he done so, the giving of the instructions refused would not have embarrassed the jury in finding a verdict for such damages as had been shown. However this may be, the instruction as asked was correct in point of law, and should have been given to the jury. Judgment and order reversed, and cause remanded for a new trial. Appellant to recover but one-half the costs upon this appeal.