Schultz v. Mexican Dam & Ditch Co.

By the Court,

Ducker, C. J.:

This is a suit in equity .instituted by the appellants to restrain the execution of a judgment obtained against them in the court below by the respondent, plaintiff in that action.

Inter alia, the complaint sets out in full the pleadings, the decision, the opinion, findings, conclusions of law, and the judgment complained of. It also sets out the facts that an appeal was taken from said judgment and an order denying a motion for a new trial to this court, which appeal was dismissed on motion, and a rehearing denied. 45 Nev. 260, 201 Pac. 548. A demurrer to the complaint was overruled, and a restraining order and temporary injunction staying execution of the judgment was dissolved by the order of the court. From the latter order this appeal is taken.

In the original case respondent had brought an action against appellants to enjoin them from in any manner interfering with a certain ditch known as the “Mexican Ditch,” the property of the respondent, in which water from the Carson River was being conducted, and for many years had been conducted, across the lands of' appellants. The court, in its judgment, awarded the respondent damages against appellants in the sum of $1,238. As to the ownership of the Mexican ditch, it is stated:

“That the Mexican ditch, its bed and its banks, are. the property of the plaintiff [respondent], to the exclusion of the defendants [appellants], in all respects connected with or appertaining to the use of said ditch for the carrying of water, and particularly its bed and its banks extending through the property of defendants, including a width of fourteen feet from the high-water mark of the right or easterly bank of said Mexican ditch, as the necessary bank of said, ditch, are the property of the plaintiff, to the exclusion of the defendants, in all respects connected with or appertaining to the use of said ditch for the carrying of water; and said Mexican Dam and Ditch Company also has what further ownership in said banks and the vicinity of said ditch as is necessary for keeping the said ditch clean and in repair, and for maintaining the same with the least possible damage to or interference with the ownership of the land through which the said ditch runs.”

It is claimed that in rendering judgment in these respects the court exceeded its jurisdiction, because the relief so awarded was outside of any issue raised in the pleadings. Hence it is urged that the lower court erred in not restraining the enforcement of the judgment. A judgment which adjudges matters outside the issue raised by the pleadings is so far void. As stated in Douglas Milling and Power Co. v. Rickey, 47 Nev. 148, 217 Pac. 590, this rule is elementary. It is not to be invoked in this case, however. The matters .mentioned are within the issues made by the pleadings in the original case. In regard to the question of damages it was alleged that the appellants have within four years last past unlawfully and wrongfully entered upon and into the banks of said Mexican dam and ditch and constructed along said bank, by cutting away a portion of said bank, a ditch approximately 1,160 feet in length, giving its beginning, course and ending; that said bank of said Mexican ditch has been unlawfully cut away by defendants to a depth of six feet in many places, thus weakening and injuring the banks thereof and rendering the same unsafe for the continued flowing of water in said ditch; defendant Joseph Schultz has by force of arms threatened to prevent plaintiff and its employees from maintaining and repairing said ditch; that by reason of said unlawful acts hereinabove complained of, plaintiff and its stockholders have been deprived of the use of water flowing in said ditch, and plaintiff has been injured and damaged by the cutting away and breaking of the banks of said ditch by defendants, and in installing and changing boxes, and by the acts as herein alleged, in the .sum of $1,500. And again, defendants, and each of them, continue to interfere with and open the banks of said ditch and to wrongfully and unlawfully divert said waters from said ditch by means of and through said boxes so unlawfully installed and lowered and enlarged as herein alleged, all to the irreparable injury and damage of the plaintiff. No damages are asked for in the prayer of the complaint. In addition to the specific relief prayed for, the plaintiff prays for all such further relief to which it may be entitled by reason of the matters and things herein alleged. All allegations of damage are denied in the answer.

In the case before us we are not concerned with the form or sufficiency of the allegations of damage, as the same may have been tested in an appropriate way in the original case. It is insisted that the damages alleged are general damages, while the damages found by the court are special damages, and therefore outside the issue. Whether the admission of proof of special' damages, in the absence of an allegation thereof; could have been considered as error in the original case, would have depended upon whether or not the adverse party made timely objection. In Mellor v. Missouri Pac. Ry. Co. (Mo. Sup.), 14 S. W. 758, 105 Mo. 455, 16 S. W. 849, 10 L. R. A. 36, it was held that when proof of special damages is offered and admitted without objection, the defendant is deemed to have waived any objection he may have had to such proof.

In Cosgriff v. Miller, 10 Wyo. 190, 68 Pac. 206, 98 Am. St. Rep. 468, the court said:

“It is, no doubt, the general rule that, to be proven, special damages must be alleged; but, when evidence showing such damages has been admitted without objection, a complaint on the ground that the allegations of the petition ate insufficient to cover special damages comes too late after verdict. Indeed, it is held that proof of special damage, if not objected to when offered, cannot be ruled from the jury by an instruction after the evidence is closed, and furnishes no ground for a new trial.”

See, also, Lashus v. Chamberlain, 6 Utah, 385, 24 Pac. 188; Plunkett v. Railway Co., 79 Wis. 222, 48 N. W. 519.

This is the rule as to error in regard to the admission of proof concerning special damages, and, in the case before us, when every presumption must be indulged in favor of the regularity of the judgment attacked, it is.apparent that appellants’ contention is without merit. Even if the damages found are special damages, a question we need not determine, the court had power to award damages under the general allegations in the complaint, and if it erred in the particular kind of damages awarded, such error could be nothing more than error committed within jurisdiction, and which could be corrected only on a new trial or an appeal.

Neither is there any merit to the contention that the judgment is void in so far as it undertakes to award damages, for the reason that no damages are asked for in the prayer of the complaint. “Ordinarily,” said the court in Johnson v. White Mountain Creamery Assn., 68 N. H. 437, 36 Atl. 13, 73 Am. St. Rep. 610, “it is the duty of the court to render such judgment as upon the whole record the law requires, without regard to any request or want of request therefor.”

In Bell v. Merrifield, 109 N. Y. 202-207, 16 N. E. 55, 56 (4 Am. St. Rep. 436), under a statute identical with ours, the court declared:

“An answer having been interposed in this case, the formal relief asked in the complaint is not of much importance, and the court will grant the judgment which shall be consistent - with the case made by the complaint and embraced within the issues.”

“If the specific relief asked cannot be granted,” said the court in Rollins v. Forbes and Wife, 10 Cal. 299, “such relief as the case stated in the bill authorizes, may be had under the clause in the prayer for general relief, and even in the absence of such clause luhere an answer is filed.” (The italics are ours.)

In Buena Vista F. & V. Co. v. Tuohy, 107 Cal. 243, 40 Pac. 386; the court said:

“In cases where an answer is filed the court may, under section 580 of the code of civil procedure, grant ‘any relief consistent with the case made by the complaint and embraced within the issue.’ ”

See, also, Mariner v. Milisich, 45 Nev. 193, 200 Pac. 478.

• The code section cited in the California case last mentioned is identical with our' statute on the same subject-matter. Our statute, as pointed out in Mariner v. Milisich, supra, was borrowed from California. The statute determines the question. Section 299 of the civil practice act, Rev. Laws, 5241, reads:

“The relief granted to the plaintiff, if there be no answer, shall not exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.”

As we have seen, the complaint contained allegations of general damages which are denied in the answer. Issue was thus joined thereon, and respondent was therefore entitled, under the statutory rule, to be awarded damages, regardless of the absence of a specific demand therefor in the complaint.

The judgment is not void as to that portion of it wherein it is adjudged that the Mexican ditch, its bed and its banks, are the property of the respondent. This part of the judgment is in conformity with the allegations of the complaint. It is claimed that it is outside the issues for the reason that it gave respondent fourteen feet of appellants’ land, whereas it is not alleged in the complaint that respondent was the owner of any part or portion of appellants’ land. The fourteen feet was awarded as the necessary width of the easterly bank of the ditch. The banks of the ditch having been alleged as the property of the respondent, this portion of the judgment was clearly within the issues. How much land was necessary for the banks of the ditch to secure respondent in the reasonable and proper enjoyment of its easement over appellants’ lands was a question for the trial court in the original case to determine under the evidence. If it erred in awarding more land than was necessary for the proper maintenance of the ditch, it was an error within jurisdiction, which we cannot inquire into in this case. The authorities cited by appellants defining what constitutes the bank of a river have no application to the banks of a ditch.

The order of the lower court dissolving the restraining order and temporary injunction is affirmed.

Coleman, J.: I concur.