Hayden

Respondent was the owner of a tract of farming land in Siskiyou county, appurtenant to which was a ditch known as the "Alger Ditch," used for conveying water from Scott river to and upon said land for purposes of irrigation. The defendant constructed a dam in the channel of the river near the head of this ditch, thereby causing the waters of the stream to flow against one of its banks and into the head of the ditch. As a result, about one-half mile of the ditch was washed away, necessitating the construction of a flume for this entire distance. This action was brought to recover $5,000 damages, thereby sustained. The jury found for plaintiff, and assessed the damages at the sum of $550. Judgment was entered accordingly, and the defendant appeals from the judgment and from an order denying his motion for a new trial. At the time the ditch was washed away, one Oltman was in possession of the land and ditch, under a lease which included an option to purchase the property. This lease contained a covenant binding the lessee to keep the ditch open and in repair at his sole expense and without charge to respondent. The court, after repeatedly instructing the jury that the plaintiff was…

In the petition for a rehearing it is earnestly contended that the judgment which was here affirmed must result in grave injustice to appellant, in the event that the lessee Oltman should voluntarily purchase the property under the option contained in the lease. It is said that in such event the purchaser could also recover for any permanent injury to the property caused by the negligence of which plaintiff complains, thus subjecting appellant to a double liability on account of the same omission or act. While the rights of the lessee cannot be determined in an action to which he is not a party, we cannot see how the fact that he might become a purchaser at some future date could affect the right of the owner of the property when the permanent injury was inflicted, to recover for any lasting injury to her property while it remained such. The option to purchase left Oltman free to act according to his will and the mere fact that he might own the property at some subsequent time cannot prejudice the right of the present owner to recover for a tort resulting in *Page 142 lasting injury to realty which she now holds and he may never acquire. Rehearing denied. Chipman, P. J., and…