San Jose Ranch Co. v. San Jose Land & Water Co.

—The plaintiffs claim certain water rights by appropriation. They charge that the defendant has wrongfully diverted water to which they are entitled, greatly to their damage, and threatens to continue to do so. They ask for an injunction during the pendency of the action, and that it he made perpetual, and for five thousand dollars damages.

An answer was put in which took issue with the allegations of the complaint and asserted adverse rights in defendant.

Upon these issues the action was tried without a jury, evidence put in on both sides, and the case argued by counsel and submitted for decision. Some seven months or more after the •submission the court made an order dismissing the case.

The judgment of dismissal recites that the case was finally ■submitted to the court for its decision more than six months before, and that the court, after due consideration, has determined that the defendant is entitled to a nonsuit, and that defendant has failed to demand a nonsuit for more than six months; it was therefore ordered and adjudged that a nonsuit he granted, “and that the action he dismissed.”

It is contended that this action was warranted by subdivision 6, section 581, of the…