THE NEVADA COUNTY AND SACRAMENTO CANAL COMPANY v. GEORGE W. KIDD et als., 28 Cal. 673

By the Court, Sanderson, C. J. The motion to strike out certain portions of the amended complaint was made upon two grounds: first, because the same were irrelevant and redundant; and second, because they contained a cause or causes of action not embraced in the original complaint. So far as the first ground is concerned, our examination must, be confined to the amended complaint, for it cannot be said that any matter contained in one pleading is irrelevant or redundant to a cause of action set out in another and different pleading.

It is obvious on inspection that the matter stricken from the amended complaint was not irrelevant or redundant to the cause of action therein set forth, and we do not understand counsel for the respondents as claiming that it was. We may therefore dismiss that branch of the motion without further comment.

It is unnecessary to discuss the questions (so elaborately argued by counsel) which would be presented were we to assume, as alleged in the second ground upon which the motion was made, that the amended complaint contains a cause or causes of action not alleged, or more properly speaking, attempted to be alleged in the original, for the reason that, after a careful examination and comparison of both, we have come to the conclusion that such is not the fact.

The matter stricken out of the amended complaint, mainly relates to the alleged right of the plaintiff to the use of the waters of the South Tuba River, and the alleged interference by the defendants with the enjoyment of that right, to the damage and prejudice of the plaintiff. Is this matter entirely foreign to the original complaint? If it is, the question as to whether the amended complaint goes further than is allowed by our code of procedure touching amendments arises, otherwise not.

For the purpose of determining this question, the allegations of the original complaint must receive a liberal construction, with á view to substantial justice between the parties, (Prac. Act, Sec. 70 ;) and we may add, that they must be read in the light of the law governing water rights in the mineral regions of this State, as it stood at the time the complaint was drawn, which was as far back as October, 1855. At that time this branch of our local law had not altogether cast off its milk and swaddling clothes.

The rules governing the acquisition and tenures of water rights by miners and ditch or canal companies had not been so clearly defined as they have been since that time. The profession had not fully learned to regard those rights as something separate and apart from an ownership of the soil, but to some extent, at least, continued to regard them as in some measure dependent upon a right or title to the land.

There was also some doubt and conflict of opinion as to what was the proper remedy in case of an ouster or interference with the possession and enjoyment of such rights— whether it was necessary for the plaintiff to sue for the possession of the land, or content himself with alleging a prior appropriation of the water merely. The original complaint in this case, as will appear hereafter, was drawn upon the former theory.

When, therefore, we read it for the ■ purpose of ascertaining what is the substantial cause of action therein set forth, or attempted to be set forth, we must not overlook the condition of the law as above described. The complaint commences by averring that the plaintiff is a corporation, and, although it- is not expressly averred, yet it is apparent from the name and style of the corporation and other matters set out in the complaint, that the corporation was formed for the purpose of carrying on the canal or ditch business, as known and understood in the mineral regions of the State.

Being a corporation, the plaintiff had no capacity to take or hold land beyond the necessities of its business. The very object and purpose of its formation was the acquisition and use of water rights and privileges as a principal thing, and'not the acquisition and use of land except as something incidental to the main purpose.

It is true that this fact, by itself considered, is not entitled to much weight, but when considered in connection with other facts and circumstances which appear, as we shall presently see, in the body of the complaint, it is worthy of notice in determining what was the substantial cause of action upon which the plaintiff relied, and which it intended to allege.

The complaint thereafter substantially takes on the form of a complaint for the recovery of real property and avers that the plaintiff is the owner in fee of certain lands, describing them in part as bounded by the South Tuba River; but it is apparent from what follows the description of the lands that a recovery of the possession of the lands was not the- sole and only purpose of the action.

On the contrary, the plaintiff seems to have alleged its ownership of the land more by way of inducement than as a principal thing, or as a supposed necessary foundation for the water rights or privileges subsequently asserted and claimed; for immediately upon the heel of the description of the lands, the complaint proceeds in these words : “ That by virtue of its ownership of said sections, lots, pieces or parcels of land, said plaintiff entered on said land with all and singular the appurtenances pertaining thereto, and was possessed thereof; and the said plaintiff, being so possessed of said land and premises, caused levels to be taken and a survey to be made for a flume, canal or ditch, and caused notices to be posted to the effect that plaintiff claimed all the waters of the South Yuba River for mining and other purposes, and thereupon the plaintiff erected a cabin or small house and commenced to work upon said flume, canal or ditch, and for a long time, to wit: from on or about the month of June, 1851, until on or about the 16th day of February, 1855, did work thereon by its representatives, agents and servants, and did enjoy the profits and revenues thereof, as it is informed and verily believes.

And that the point above described, where said pine or fir tree had fallen and lay across said stream, was located, held, enjoyed and possessed by the plaintiff as a location for a dam to turn the %caters of the said' South Yuba River into its flume, canal or ditch, and that upon said location and premises said plaintiff had expended large sums of money; that the defendants in the above entitled cause afterwards, to wit: on or about the 16th day of February, 1855, with force and arms, entered into and upon the above described two sections, lots, pieces or parcels'of land, with the appurtenances belonging thereto, in the possession of said plaintiff, and the said defendants ejected said plaintiff out of the possession of the said two sections, lots, pieces or parcels of land, and out of all and singular the appurtenances thereunto belonging.” By the word “ appurtenances ” the pleader manifestly refers to the plaintiff’s alleged water rights.

Thereafter it is averred in substance that defendants entered and drove off the plaintiff’s agents at work upon the dam and canal, and took forcible possession of the plaintiff’s dam and survey, and constructed for themselves a dam and flume and forcibly prevented the plaintiff from proceeding with the erection of the works designed by it, to its damage, in the sum of one hundred thousand dollars, and closing with a prayer for restitution, damages and general relief.

To hold that this complaint was framed solely for the purpose of recovering the possession of the lands therein described, regardless of all right or claim to the waters of the South Yuba River for canal purposes, would be to hold that more than half of the body of the complaint is meaningless, and was inserted without design and for no useful purpose. We cannot so regard it.

On the contrary, we are satisfied, from the whole tenor and scope of the complaint, that in the mind of the pleader the trespass upon the plaintiff’s alleged water rights by the defendants was the gravamen of the action, and that a restoration to those rights was the principal object sought by the institution of the suit. It follows that the Court below erred in allowing the motion to strike out, and that the judgment must be reversed and the cause remanded for further proceedings. Ordered accordingly. Sawyer, J., dissenting. I dissent. On petition for rehearing, Sanderson, C.

J., delivered the following opinion, Currey, J., concurring: A petition for rehearing has be.en filed in which it is suggested that in the

interpretation of the original complaint in this case we have adopted the wrong rule of construction. We adopted the rule prescribed in the seventieth

section of the code of procedure, which is in the following language: “In the construction of a pleading for the purpose of determing its effects, its allegations shall be liberally construed with a view to substantial justice between the parties.” If the foregoing rule can have any application whatever it is to a case like the present.

The common law rule that a pleading must be taken most strongly against the pleader where the language used is ambiguous has not, as counsel seems to suppose, been forgotten by us; but we did not fall into the error of supposing that it had any application to the question presented by the record in this case. Where the pleader stands upon his pleading and maintains its sufficiency in law in the presence of a demurrer or other hostile attack, the rule to which counsel appeals with so much confidence undoubtedly applies. In such a case all doubts are to be resolved against the pleader.

He asks no mercy and is entitled to no quarter. But that is not this case. Here the pleader confesses that his pleading is bad, and that it imperfectly and ambiguously expresses his meaning and intent, and he therefore appeals to the mercy of the Court to be allowed to amend it ‘‘in furtherance of justice,” so as to present more clearly his cause of complaint. To such a case, the rule under consideration, which is a rule of war and not of mercy, can have no possible application; on the contrary, the utmost liberality, consistent with the ends of justice, ought to be exercised by the Court.

But it is, in effect, further claimed that the rule in question ought to be applied to this case at least, because the plaintiff has allowed it to sleep in the Clerk’s office for nearly ten years. If the case has been allowed to sleep to the prejudice of the defendants, the fault is theirs. They have had it in their power to force the case to a final result at any time, as much so as the plaintiff. Why the case was thus allowed to sleep is entirely unexplained by the record, and we are bound to presume that it was by mutual consent.

Such being the case, neither party can complain of the delay, whether there was any good cause for it or not. Rehearing denied. Shafter, J., concurring specially. I concur in the order. Mr. Justice Rhodes and Mr. Justice Sawyer did not express any opinion on the petition for rehearing.