Haydon v. Brown ( 1892 )

By the Court,

Murphy, J.:

This action was brought to abate a nuisance caused by a dam constructed across the Truckee river, to enjoin its future maintenance, and for damages. Samuel Brown and the Keno Electric'Light & Power Company, a corporation, were made defendants. Brown answered for himself alone, and the company failing to answer, its default was duly entered. The cause was tried by the court and jury. Special issues were submitted and found in favor of defendant Brown, and he alone appeals from the judgment.

The points in this .decree to which the appellant objects are: “ First, the establishment of the Truckee river as a non-navigable water course; second, the establishment of a fixed, arbitrary and immovable center or middle thread of the stream; third, the extension of respondent Haydon’s land to such fixed, permanent and immovable center or middle thread; fourth, the recognition and establishment of a valuable water right in respondent Hay don, by virtue of his ownership of land extending to the center or middle thread of the Truckee river.”

In our opinion, the decree is entirely in favor of the defendant Brown. No injunction is entered nor are any damages awarded against him. The decree directs that as against him the plaintiff shall take nothing. The finding that the plaintiff’s land extends to the middle thread of the stream is in accordance with the admissions in the pleadings, and was really invited by the defendant, who claimed in his answer to own on the other side of the river, to the same middle thread, and to have the right to maintain his dam to that point. As no injunction was granted against his so doing, this right must have been found in his favor. As the navigability or non-navigability of the river could only affect the partiés as to their ownership of the bed of the stream, these allegations and admissions make the finding that the river is non-navigable entirely immaterial.

As Brown disclaims in his answer all ownership or title to that part of the dam erected on the plaintiff’s side of the stream and decreed to be a nuisance, and all right to maintain the same, and denies that he constructed it or authorized its construction, he is not prejudicially affected by that part of the decree directing the other defendant to abate it. As upon every issue in the pleadings the decree is in appellant’s favor he has no cause to complain of it.

The judgment appealed from is affirmed.