Churchill

— I concur in the judgment. The finding of the court below that plaintiff participated with defendants in the maintenance of the dam and diversion of the water of which he complains is a defense to the action. I do not, however, concur in so much of the foregoing opinion as holds that evidence tending to prove such defense was properly admitted under the denial that plaintiff sustained damage by reason of the matters alleged in his complaint. I think that such defense should have been specially set out in the answer. But this appeal is upon the judgment roll without any bill of exceptions, and upon this record the presumption is, that the evidence by which this defense was established was received without objection, and that the case was tried by consent of the parties, as if such defense had been specially alleged. This being so, appellant should not be permitted to urge here for the first time that no such issue was made in the court below. (Horton v. Dominguez, 68 Cal. 642 .) The court below should have directed an amendment of the answer so as to conform to the proofs, but the judgment ought not to'be reversed because such formal amendment was not made.

I do not understand…

This action was commenced on the first day of April, 1889, to recover eight thousand eight hundred dollars damages from the defendants — seven in number — for the alleged diversion of water from a natural stream — Pine Creek — in Modoc County, during the years 1887 and 1888, to the injury of plaintiff’s riparian and appropriated water rights below the point of diversion; and also to enjoin such diversion pendente lite, and upon the bearing, perpetually.

Judgment passed for defendants, and plaintiff appeals from the judgment on the roll and without a bill of exceptions.

The court found that in the early part of spring the stream affords 3,000 inches of water under a four-inch pressure, but in the dryest part of the year only 1,000 inches; that in June, 1882, the defendants and one J. Thad. Jones constructed a dam across the creek above plaintiff’s riparian lands, and above all the points from which plaintiff diverted water, by which they diverted from the creek 550 inches of water into a ditch constructed by them, through which they conducted that amount of water to certain lateral ditches connected therewith, through which the water in the main ditch *543 was distributed among…