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District Court of Appeal, Third District, California.

Franels W. HUDSON and Merie S. Hudson, his wife, Plaintiffs and Appellants, v. Thomas WEST and Pearl M. West, his wife, Defendants and Respondents.*

Civ. 8513.

Decided: May 09, 1955

Bradford, Cross, Dahl & Hefner, Sacramento, for appellants. Hughes & Maul, Placerville, for respondents.

This appeal is from a judgment in favor of defendants quieting title to certain described real property in El Dorado County, together with ‘all ditches, water ways and water courses, of whatsoever kind or character situate upon said real property, and all waters arising on, or flowing on, or upon, said real property,’ and adjudging that plaintiffs have no estate or interest therein.

The action was tried on plaintiffs' second amended complaint, which sets forth two causes of action, and defendants' so-called answer to the first amended complaint which by stipulation was deemed to be the answer to the second amended complaint. Defendants' pleading, which bears the title, ‘Answer to First Amended Complaint’, consists of general denials to most of the allegations in each paragraph of both causes of action and then sets up six additional so-called defenses to the first cause of action and five additional so-called defenses to the second cause of action. None of them is entitled or referred to as being ‘a cross-complaint’, but in the so-called fifth, sixth and seventh defenses to the first cause of action and in the fifth and sixth defenses of the second cause of action defendants' property is described and ownership thereto is asserted both generally and by reason of alleged adverse possession for more than five years. Claim of ownership is made to all water, ditches, water ways, etc., on this property. In the prayer of this pleading defendants pray that they be decreed the owners of this property, water, etc., and that all who assert an adverse interest therein be forever enjoined and restrained from so doing.

The first point raised by plaintiffs here is that this pleading does not constitute a cross-complaint and therefore the trial court erred in giving judgment quieting defendants' title. It is urged that defendants' pleading is labelled as and must be regarded as a strictly defensive pleading and therefore it cannot serve as the basis for the granting of affirmative relief.

Section 452 of the California Code of Civil Procedure provides that a pleading is to be liberally construed for the purpose of determining its effect in order that substantial justice may be done between the parties. It is true that a cross-complaint is a pleading separate and apart from the answer. In general it is required to be complete and sufficient in and of itself and cannot be be aided by the averments of the answer. Luse v. Peters, 219 Cal. 625, 28 P.2d 357; Case v. Kadota Fig Ass'n, 35 Cal.2d 596, 220 P.2d 912. But it is also well established that the nature of the pleading will be determined from the allegations or averments therein regardless of the title it bears. Gregory v. Bovier, 77 Cal. 121, 19 P. 232; Pickwick Stages, Northern Division, v. Board of Trustees, 189 Cal. 417, 208 P. 961; Case v. Kadota Fig Ass'n, supra. Particularly is this so when, as here, the plaintiff proceeded to judgment in the trial court without raising the point even though it was entirely obvious from defendants' pleading that they were asking for the very affirmative relief which was granted by the trial court. McDougald v. Hulet, 132 Cal. 154, 64 P. 278. The so-called defenses hereinabove referred to were complete within themselves without aid of the strictly defensive portions of the pleading. No default for failing to answer the affirmative allegations in the pleading was taken or requested of the court by defendant and there is no claim that plaintiff was misled or that any advantage was taken of them on this account. It is not apparent to us nor have appellants pointed out how they were in anywise injured by the fact that when the trial court denied them judgment based upon its determination that they had no title it thereupon went further and quieted title in defendants. It would seem to be of no legal concern to plaintiffs where title lay if it did not rest with them.

As a general rule, where pleadings are not questioned in the trial court, it is too late to question their adequacy for the first time on appeal. Sec. 434, Code Civ.Proc.; Gordon v. Clark, 22 Cal. 533; Rubel v. Peckham, 94 Cal.App.2d 834, 211 P.2d 883; Miller v. Busby, 101 Cal.App.2d 83, 224 P.2d 754; Nanny v. Ruby Lighting Corp., 108 Cal.App.2d 856, 239 P.2d 885; Lucy v. Lucy, 22 Cal.App.2d 629, 71 P.2d 949; McDougald v. Hulet, 132 Cal. 154, 64 P. 278.

The only other assignments of error have to do with the findings made by the trial court. Appellants claim that these findings are conflicting, that some are contrary to and at variance with the indisputable laws of nature of which the court should have taken judicial notice and that they are not supported by the evidence.

The facts of the case are as follows:

Plaintiffs and defendants are owners of land near Smithflat, El Dorado County, plaintiffs having purchased their property in May, 1948, and defendants having acquired theirs in 1945. Defendants' property lies to the northeast, and at a higher elevation than plaintiffs', and the two parcels are separated by property owned by one Clarke. Red Ranch Ravine is a gulch which originates on property lying to the northeast of defendants' land, owned by Jones and Reckers, and runs in a southwesterly direction, generally parallel with what is known as Red Ranch Ravine Road, through the lands of defendants, Clarke and plaintiffs.

Plaintiffs, and some of their predecessors in interest, testified that prior to October, 1950, when defendants built a dam on their property, they had procured irrigation water from Red Ranch Ravine in sufficient amounts to raise good gardens, but that since the building of the dam by defendants the water in the ravine dried up and they were deprived of irrigation waters. Plaintiffs estimated that there were some six inches of water flowing through the ravine when they acquired the property in 1948. However, the case presented by defendants would indicate not only that the water flowing in the ravine onto plaintiffs' property was only in nominal amounts, but also that there were and are other sources from which plaintiffs could have secured, and probably did secure, water for their own limited irrigation purposes.

Defense witnesses testified that Red Ranch Ravine, which originates on the property of Jones and Reckers, is fed by waters from three springs located on the same property; that these waters have always been used by Jones and Reckers for their own irrigation purposes; that the water which flows through the ravine onto defendants' property consists of seepage and run-off irrigation water from the Jones and Reckers property; that defendants have, since their acquisition of title, used all the water thus flowing onto their lands to irrigate their orchard and that what little water flowed beyond and into Clarke's property consisted merely of seepage; that prior to 1950 defendants irrigated by means of two conduit ditches leading from the ravine into the cultivated portion of their property; and that in October, 1950, the dam was built so as to make more economical use of these waters by sprinkler irrigation.

It further appears that plaintiffs could have, and probably did, secure irrigation water from at least three other sources. Immediately to the north of plaintiffs' property and on the lands owned by Clarke there is a natural spring. The waters from this spring, as well as waters coming from Hangtown Creek, lying to the north of Clarke's property, and waters from the El Dorado Irrigation District ditch, flow through a ditch originating on the Clarke land, under Red Ranch Ravine Road via a steel conduit, and ultimately onto and through plaintiffs' land. In addition, certain leakage waters from an irrigation district syphon lying to the east of plaintiffs' land drained into Red Ranch Ravine just as it enters plaintiffs' land.

Appellants assert that the trial court erred in making finding number VII, which they claim is erroneous in a number of respects. Said finding reads as follows:

‘That it is true that for more than five (5) years preceding the commencement of said action the defendants have used all the waters arising on, or flowing on or upon, the said real property owned by defendants for beneficial purposes, to wit, for irrigating an orchard and pasture and for watering fowl and live stock and have for a period of more than five (5) years preceding the commencement of said action paid all taxes levied, assessed or payable against the said real property.’

Appellants maintain first that finding number VII is contradicted by the laws of nature and cannot stand. In this they argue that since the record, standing uncontradicted, proves that plaintiffs and their predecessors raised good gardens, and since it is a matter of judicial notice that no garden will grow in that locality unless it is amply irrigated, and since the record shows that there were no other sources from which plaintiffs could secure water in supply adequate to so irrigate, it is contrary to the laws of nature to find that all waters in Red Ranch Ravine were used by defendants for five years prior to 1951, when in fact good gardens were raised up to and including 1950, when the dam was constructed in the ravine by respondents.

This would appear to be nothing more than an assertion that the evidence is insufficient to sustain the judgment of the trial court based as it is on finding VII. With this we cannot agree. At no time did plaintiffs offer to prove the amount of water needed and used by them to irrigate, and there is room to doubt that any great quantity was used since plaintiff admitted that ‘he never had much of a garden’ and pastured only three cows and three calves. In view of this and the substantial testimony concerning the existence of other sources of water supply, it would seem reasonable to assume that appellants could secure sufficient irrigation waters for their limited purposes while at the same time defendants were using all the waters flowing onto their lands through Red Ranch Ravine. Thus we find no error or contradiction in the finding herein challenged.

Appellants next contend that the judgment is incorrect in that it is based upon inconsistent and contradictory findings, namely findings IV and VII.

Finding IV is: ‘That, except as hereinbefore set forth, the allegations contained in plaintiffs' Second Amended Complaint are not true.’ The allegations in paragraph V of said complaint are substantially: (a) That said defendants West constructed a dam across the ravine; (b) That said dam has stopped the flow of water as it was wont to flow from and across the lands of defendants onto the lands of plaintiffs; (c) That defendants West have taken, used and diverted all of the water flowing in said water course; and, (d) That plaintiffs have not been able to use any water from said ravine because defendants constructed the dam and did take, use and divert said water. Appellants urge that finding IV that these allegations in the complaint are not true is inconsistent with and in conflict with finding VII.

This argument is not worthy of prolonged discussion. It is incumbent upon an appellate court to give the findings of fact such a construction as will uphold rather than defeat the judgment, reading all findings together so as to resolve any ambiguities and inconsistencies therein in favor of sustaining the judgment. Woodbine v. Van Horn, 29 Cal.2d 95, 109, 173 P.2d 17; 24 Cal.Jur. pp. 1009–1011. And, a judgment may not be set aside unless the conflict is clear and the findings incapable of being harmoniously construed. 24 Cal.Jur. p. 967.

The findings herein seems to be completely reconcilable. Even if this were not so, it is plain that finding IV could be disregarded as surplusage and the judgment sustained on the basis of the sufficiency of the evidence to support finding VII, the materiality of which cannot be denied.

Appellants' final argument is but a reiteration of conflicting evidence, an assertion that they, as lower riparian owners, were illegally deprived of their proportionate share of the waters naturally flowing through Red Ranch Ravine, and a contention that finding VII, upon which the judgment is based, is not supported by the evidence.

Suffice it to say that the evidence, as hereinbefore discussed, is sufficient to sustain the judgment in favor of defendants. Although it may be true that plaintiffs had certain riparian rights in and to the natural flow of water through the ravine and that defendants' use of the waters flowing upon their lands was unreasonable in relation to that right, it is also true that the judgment is based upon the finding of a prescriptive right thereto acquired by defendants Moore v. California Oregon Power Co., 22 Cal.2d 725, 140 P.2d 798; E. Clemens Horst Co. v. Tarr Mining Co., 174 Cal. 430, 163 P. 492, and plaintiffs' complaint therefore came too late.

The judgment is affirmed.

FINLEY, Justice pro tem.

VAN DYKE, P. J., and SCHOTTKY, J., concur.