James v. Goodenough

By the Court, Garber, J.: The plaintiff obtained a decree enjoining the defendants from diverting the water of a certain creek. The complaint alleges, among other'things, that, in June, 1865, the plaintiff and one Epstein recorded a claim to all the water of said stream, and, within a reasonable time thereafter, constructed a flume leading from the channel . of the creek to the land of the plaintiff before described, into which they turned and through which they conducted said water over and upon said land, for the purpose of irrigating the same; and that the [327] plaintiff had acquired all the interest of Epstein. On the trial the plaintiff testified that he and one Jones constructed the said flume in 1864, and that, in 1865, Epstein and the plaintiff recorded the said claim. The defendants moved to strike out the testimony as to the construction of a flume in 1864, by the plaintiff and Jones, on the ground that it did not conform to the allegations in the complaint. The motion was overruled, and the ruling excepted to. The appellants contend that this was a fatal variance; but we are clearly of opinion that it was not. It is sufficient if the proofs correspond with the allegations in respect of those facts and circumstances which are, in point of law, essential to the cause of action. The allegata and probata need have only a legal identity, and this consists in their agreement in all the particulars legally essential to support the claim preferred. Immaterial allegations, such as probative facts not descriptive of some essential averment, need not be proved as laid. 3 Starkie Ev. 1525 et seq.; Patterson v. Keystone Mining Co., 30 Cal. 364. Here the essential facts — those constituting the cause of action— are: 1. That before and at the time of the diversion mentioned the plaintiff was seized in fee and possessed of the land described, situate upon the creek mentioned. 2. That during all that time the plaintiff had the right to use and employ, and ought to have had and enjoyed, and still, of right, ought to have and enjoy the benefit and advantage of the water of said water-course, which during that time ought to have run and flowed, and until the diversion, etc., of right had run and flowed, and still of right ought to run and flow therefrom through a certain flume leading from the channel of said creek to said land and to parts thereof beyond and remote from said creek, and from thence unto, into and over said land for the irrigating and watering the same, and the benefit and improvement of the soil thereof. 3. The continuing diversion by the defendants, the damage, etc. Vide 2 Chitty PL 786-794 (a) ; lb. 799, 800, note (y) ; Twiss v. Baldwin, 9 Conn. 191; 13 Cal. 221; 1 McCarter, (N. J.) 342; 35 Penn. 88. At least, none of the other allegations of the complaint can be claimed to be essential or constitutive. [328] The case thus made is equally supported, whether the evidence be that the flume ivas constructed in the year 1864 by Jones and the plaintiff, or in the year 1865 by Epstein and the plaintiff. Proof that the water was turned into the flume in 1864 certainly is not so inconsistent with the allegation that the water did flow and ought to have flowed through it in 1865, as to disprove it altogether. Such a redundancy of proof is wholly unimportant. 3 Starkie, 1558. The variance from the formal allegation as to the time when and the person by whom the flume was constructed would not be fatal, even on the supposition that the recording of the claim to the water and the construction of the flume were each of them material facts. Their priority in point of time being absolutely immaterial, a variance from the priority as alleged is equally so. The agency by which the act was performed is a circumstance as unimportant as its date, and as little descriptive of the material fact. Ibid, 1553-1569. It is urged that the evidence is insufficient to justify the'findings. But no motion for a new trial was made, and in no other manner can the question be raised. The judgment is affirmed.