Smith v. Fresno Canal & Irrigation Co.

Plaintiff is the owner of certain land in Fresno county, and brought the action against defendant for damages, and to abate a nuisance; alleging that in 1896 it unlawfully and without right entered upon plaintiff’s said premises, “and dug and excavated a large irrigating ditch along and across the whole north side thereof.” Defendant answered that it constructed the ditch in 1891, with the consent and at the request of plaintiff. The cause was tried by the court without a jury, and it found that the ditch or canal was constructed in the year 1891, “with the consent and approval and at the instance and request of plaintiff”; that, as first constructed, the ditch was “about eight feet wide on the bottom, and from fifteen to twenty feet wide on the water surface, and on the top of the banks twelve or fifteen feet more, and that said ditch was completed, cleaned out, and somewhat widened and enlarged in the year 1892”; that plaintiff has not been damaged by the said work. Judgment passed for defendant, from which, and from the order denying her motion for a new trial, plaintiff appeals.

*901 The evidence is undisputed that defendant constructed the ditch over plaintiff’s lands in…