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Opinion of the Court-Ducker, J.

ordinary prudence, he will not be heard to say that he was deceived.

The purpose of the statute is to punish for dishonesty, and to protect persons from fraudulent representations which might induce them to part with their property. This purpose would be largely frustrated if the owners of property having the opportunity for investigating the false pretense were without the protection of the statute. Criminals wary enough under such a state of the law to confine their activities to this class of persons would be furnished with complete immunity in their nefarious calling.

We can conceive of cases in which the false pretense could be of such an absurd character that for a person of ordinary intelligence to act upon it and part with his property without an investigation, when the means of ascertaining the deception were at hand, would suffice to bring the case without the purview of the statute. But this is not a case of that kind. There was nothing absurd or irrational in the representation made to the complaining witness. It is not unreasonable for him to conclude that appellant was the owner of the car and had possession of it at the garage where he formerly kept it. Under the facts as disclosed by the evidence, no duty rested upon him to take the time and trouble to make an investigation to verify appellant's representation. Therefore to permit the appellant to shift the responsibility of his deception to the injured party would do violence to the spirit of the statute and countenance a wrong.

The judgment of the trial court should be affirmed; and it is so ordered.

VOL. 44-25

Points decided

[No. 2353]

BERTHA JOHNSTON AND CHAS. E. JOHNSTON, RESPONDENTS, v. ROMEO ROSASCHI AND THE NICHOL LAND AND STOCK COMPANY (A CORPORATION), APPELLANTS.

[194 Pac. 1063]

.1. NEW TRIAL-ACTION HELD ONE IN EQUITY, PERMITTING TEN DAYS TO SERVE NOTICE OF INTENTION.

Notwithstanding an action was tried in the court below as an ordinary action at law, where the case in its inception was one of purely equitable jurisdiction, the verdict of a jury being advisory, held that the action was equitable, and a party had ten days' time, after entry of verdict, to file and serve notice of intention to move for a new trial instead of five, as in law actions.

2. APPEAL AND ERROR-OBJECTION BELOW IS NECESSARY FOR REVIEW. Conceding that where a jury is called in an equity case only special issues should be submitted, and that a general verdict is improper, and that a judgment based thereon is erroneous, yet where it does not appear that the court regarded the verdict as binding, and appellant's counsel concede the jury was called as advisory, appellant, having made no objection to such course at the time, cannot take advantage of the error on appeal.

3. TRIAL

PARTIES NOT ENTITLED ΤΟ HAVE ADVISORY JURY

INSTRUCTED.

In a purely equity case, where the judge merely empanels a jury to find specific facts, neither party has a right to have the court instruct the jury, but, if they are instructed, it follows that the law should be correctly stated.

4. APPEAL AND ERROR-ERROR AS TO INSTRUCTIONS IN EQUITY CASE NOT REVERSIBLE ERROR.

Since the court in a purely equity case is not bound by the jury's advisory verdict, refusal to give a correct instruction or a misdirection is not an error authorizing a reversal.

5. WATERS AND WATERCOURSES INJUNCTION LIES TO STAY USE OF WATER WHERE MISCHIEF IRREPARABLE.

Injunction to stay the use of water for irrigation purposes because of interference with plaintiff's lands may be granted, where great and irreparable mischief will result and a suit at law will be ineffectual.

6. WATERS AND WATERCOURSES

PARTY USING WATER FOR IRRIGA

TION MUST NOT INJURE NEIGHBOR'S LAND.

While an upper landowner has an undoubted right to make a reasonable use of water for irrigation, he must so use, manage, and control it as not to injure his neighbor's land, otherwise such use may be enjoined if working irreparable injury.

Argument for Appellant

7. WATERS AND WATERCOURSES-IN ACTION TO ENJOIN IMPOUNDING AND USE OF WATER BY TENANT, LANDLORD HELD PROPER PARTY. In an action against a landlord and tenant to enjoin the impounding and use of waste water for irrigation because of interfering with the use of plaintiff's land, notwithstanding the rule that prima facie breach of duty, and therefore the liability, is that of the occupant or tenant, yet where the tenant ceased such use and the landlord, made a party, asserted its right to so impound and use such waters, it was a proper defendant. 8. PLEADING AMBIGUOUS AND UNCERTAIN COMPLAINT HELD CURED BY ANSWER.

Conceding that a complaint against owner and tenant to enjoin an injury from impounding of waters for irrigation was defective, uncertain, and ambiguous, such defect was cured by the owner's answer and affirmative defense and cross-complaint, showing that unless enjoined he will continue to impound such waters.

APPEAL from Eighth Judicial District Court, Lyon County; T. C. Hart, Judge.

Suit by Bertha Johnston and another against Romeo Rosaschi and the Nichol Land and Stock Company. Judgment for plaintiffs, and defendant company appeals. Affirmed.

Mack & Green, for Appellant:

The demurrer to the original complaint and to the amended complaint should have been sustained. There is no allegation that connected appellant with the injury. No action at all can be maintained until notice is given that the instrumentality maintained is a nuisance. No such notice is alleged. 29 Cyc. 1216; 21 Ency. Law, 720; Addison on Torts, sec. 280.

Appellant had no authority to go upon the leased premises for the purpose of abating the alleged nuisance. 2 Farnham on Waters, sec. 566; Plumer v. Harper, 14 Am. Dec. 333; Castle v. Smith, 36 Pac. 859.

There was no allegation or evidence that appellant had created the nuisance. It could not be required to abate a nuisance it had not created. 1 Addison on Torts, p. 235.

Respondents acquiesced in the construction of the

Argument for Respondents

ditch, and could not therefore have equitable relief against appellant. Addison on Torts, sec. 294.

When the plaintiff consents to an act he cannot subsequently treat it as a trespass, nor recover damages therefor. Cadwell v. Farrell, 28 Ill. 438; Ashcroft v. Cox, 50 S. W. 986; Law v. Nettles, 2 Bailey L. 447; Brown v. Armstrong, 102 N. W. 1047; Venneat v. Fleming, 44 N. W. 906; 28 Am. & Eng. Ency. 460; Churchill v. Bauman, 95 Cal. 541.

When a landowner permits an appropriator of water for a number of years to enter upon his land for the purpose of constructing a dam, he will be estopped from treating the appropriator as a trespasser and denying his right of entry. Miller v. Douglas, 60 Pac. 722; Burk v. Simonson, 104 Ind. 174; Brown v. Armstrong, 102 N. W. 1047.

In the absence of negligence, the owner of an irrigating ditch is not liable for an injury by the water escaping. Fleming v. Lockwood, 36 Mont. 384; Lapham v. Curtis, 5 Vt. 371; Hoffman v. Tuolumne Water Co., 10 Cal. 413.

The court erred in refusing to submit to the jury special interrogatories submitted by appellant. The case was a suit in equity for injunction only, in which a jury was only advisory to the court, and in which special interrogatories should have been submitted. Those requested by appellant were arbitrarily refused. Rev. Laws, 4945, 5222; Stats. 1915, p. 110; Rev. Laws, 4945. "The court may, however, instruct the jury, but if it does so the instructions should not be general, as in an action at law, and should relate only to the determination of the questions of fact submitted to them." 16 Cyc. 422.

Robert L. Waggoner, for Respondents:

The only question raised by demurrer was as to the sufficiency of the facts alleged to sustain the cause of action. This was not an action to abate a nuisance, but one for an injunction against the use of defendant's

Argument for Respondents

property in such a way as to injure plaintiff, and to forbid an unlawful act. The unlawful act was admitted and proved to have begun long before the lease was given. A lessor is liable for a condition existing on the premises at the time of the lease. Grady v. Wolsner, 46 Ala. 381; 24 Cyc. 1128.

Appellant claimed the right to empty its waste water into the pond for the reason that it had done so for more than thirty years. Edgar v. Walker, 106 Ga. 454; House v. Metcalf, 27 Conn. 631; Gandy v. Jubber, 5 B. & S. 78; Lufkin v. Zane, 157 Mass. 117; Fow v. Roberts, 108 Pa. 489; 21 Am. & Eng. Ency. 721; Riley v. Simpson, 83 Cal. 217.

By consenting to the unlawful use of its property, appellant became liable to restraint by injunction. An owner cannot so divest himself of responsibility for the use of his property as to excuse him for its unlawful and injurious use with his knowledge and consent. Pierce v. German S. Soc., 13 Pac. 478; Kalis v. Shattuck, 11 Pac. 348.

A landlord knowingly leaving his property in a condition of nuisance may be liable to third persons. Joyce v. Martin, 15 R. I. 558. The landlord is said to have authorized the continuance of the wrong, as he had notice of the condition of the premises, and this was such as to be a nuisance per se. Welfare v. London & B. Ry. Co., L. R. 4 Q. B. 693; Slight v. Gutslaff, 35 Wis. 675; Timlin v. Standard Oil Co., 126 N. Y. 514. Where the owner leases premises which are in a condition of nuisance, or must in the nature of things become such by their user, and receives rents, he is liable for the injury resulting from such nuisance. Roswell v. Prior, 12 Md. 635; Godley v. Hagerty, 20 Pa. St. 387; Congreve v. Smith, 18 N. Y. 79; Clifford v. Dam, 81 N. Y. 52. If the lessor of the premises licenses the lessee to perform certain acts which amount to a nuisance, the lessor is liable. White v. Jameson, L. R. 18 Eq. 303; Lufkin v. Zane, 157 Mass. 117.

Any defect in the complaint was cured by answer and

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