(Harrison v. Peabody, 34 Cal. 180; Gradwohl v. Harris, 29 Cal. 155; Zuck v. Culp, 59 Cal. 142.)

VAN FLEET, J.-Action to recover of defendants thirty-four thousand eight hundred and ninety-one dollars and twenty-six cents, as damages alleged to have been occasioned by the destruction of certain brandies, wines, liquors, and other personal property, swept away by the Los Angeles river during high water, by reason, as alleged by plaintiff, of said river being obstructed and diverted by a railroad bridge constructed by the predecessor of defendants and maintained by the latter, and which bridge, it is alleged, was so faultily and negligently constructed and maintained as to constitute a dangerous nuisance in that it was not of sufficient space or size to admit of the ow of the waters of the river beneath it, whereby they were dammed up and caused to leave their banks and wash away and destroy the property in question.

The cause was tried by a jury, which rendered a verdict for plaintiff of five hundred dollars. From the judgment entered thereon and an order denying a new trial plaintiff appeals.

There is but one question necessary to be noticed. It is contended by plaintiff that there was no evidence to support the finding of the jury as to the amount of damage suffered by plaintiff, and that the verdict in that regard is against the instruction of the court, and therefore contrary to law.

The court instructed the jury, among other things:

"It is conceded that the property described in the complaint as having been destroyed was of the value stated in the complaint; and, if you find that said property was destroyed in the manner and under the circumstances as stated in the complaint, it will be your duty to render a verdict for the admitted value thereof."

It is claimed by plaintiff that this instruction was based upon the fact that the evidence given on the part of plaintiff, as to quantity and value of goods destroyed,

clearly established the damages as alleged in the complaint, and that this evidence was wholly without conflict, and uncontradicted by defendants, who not only put in no evidence on the question, but admitted at the trial that, if liable at all, they were liable for the damages alleged in the complaint. Defendants deny this. They claim that the evidence given by plaintiff as to the quantity of goods destroyed was not direct or positive, or such as the jury were bound to believe; that there was no admission by defendants of the quantity of goods destroyed, but only as to the value per gallon of the goods which plaintiff should prove to have been eventually lost; and, further, that the instruction quoted does not, and was not intended to, charge the jury that the quantity of goods lost was admitted, but that the jury were at liberty to find on that question either for or against plaintiff's evidence. The position of defendants is not supported by the record. The evidence on the part of plaintiff was such as, in the absence of any countervailing proof by defendant on the subject, left the jury no room to find that any of the property was destroyed, if not all. The testimony of the witness Kohler was sufficiently direct and positive. He testified explicitly and in detail as to the various items lost, and their value, and then stated: "The total loss was thirty-four thousand eight hundred and ninety-one dollars and twenty cents. The various items which I have enumerated, composing that sum total, constitute, in my opinion, a fair and moderate estimate of the loss sustained," etc. The con struction attempted to be put upon the testimony of the witness that he was then stating the quantity and value of goods originally swept away, and not what was actually lost over and above the amount eventually recovered, is not borne out by an examination of the witness' whole testimony.

But, furthermore, we think the record fully establishes plaintiff's claim that defendants admitted not only the value, but the quantity, of the goods lost to be as claimed by plaintiff. We can put no other construc

tion upon the statements of defendants' counsel that will make them consistent with his conduct of the trial. During the examination of a witness by one of plaintiff's counsel on the subject of the lost property it was suggested that he ask the witness as to value. Counsel for defendants thereupon said: "There is no dispute about the value. I concede that the valuation is reasonable, if we are liable at all." Were it not for what followed there might possibly be room for the claim of defendants that this admission referred only to the value per gallon, and not to quantity of goods lost. At a later stage in the trial, however, when a question arose between counsel as to the materiality of certain evidence, one of plaintiff's counsel said: "But we are suing for specific damages anterior to this time, specific and defined. It is not the damage to the freehold, but the damages described in the complaint for a list of articles which you admit yourself." To which defendants' counsel replied: "If we are liable at all." It is perfectly obvious from this that defendants' admission went to the quantity and value of the property as alleged, and thereby covered the damages as claimed.

found that issue in

Furthermore, that the court so understood counsel's position is apparent. This is clearly indicated by the instruction quoted, which is in no way modified by other parts of the charge. The jury are not left free to assess the amount of damage suffered by plaintiff in the event they find for the latter. As claimed by plaintiff, the only question left to the jury was whether the property was destroyed in the manner and under the circumstances alleged. If they the affirmative, they were bound, under the court's instruction, to assess the damages at the amount claimed in the complaint. That they did so find is necessarily implied from the verdict, since a verdict in favor of plaintiff was a finding for him upon all the material issues. The verdict, however, not only ignores the admitted facts as to the amount of damages suffered, but plainly disregards the charge of the court upon that

point. It is, therefore, in that regard, both unsupported by the evidence and contrary to law.

The judgment and order denying a new trial are reversed and a new trial ordered.

HARRISON, J., and GAROUTTE, J., concurred.

Hearing in Bank denied.

[No. 19529. Department One-July 26, 1895.] RIVERSIDE WATER COMPANY, RESPONDENT, V. MATTHEW GAGE, APPELLANT.

APPEAL-REVIEW OF ORDER DENYING NEW TRIAL-FINDINGS AND PLEADINGS NOT INVOLVED.-Upon appeal from an order denying a new trial, where the cause was tried by the court and the record of its action is embodied in a statement of the case, the only questions to be considered are the sufficiency of the evidence to justify the findings of the court, and whether any errors of law occurred at the trial; and the questions as to whether the findings are sufficient to support the judgment, or correspond with the issues presented by the pleadings, or as to what issues the pleadings present, do not arise, and these questions can be considered only upon appeal from the judgment. ID.-DECISION UPON APPEAL FROM JUDGMENT-CONSTRUCTION OF ANSWER-RIPARIAN RIGHTS-PRESCRIPTION-REVIEW OF EVIDENCE.--Where, upon an appeal from a judgment in an action for the diversion of water, decided before an appeal from an order denying a new trial, the court determined that the answer of the appellant raised no issue as to the extent of the defendant's rights, as a mere riparian proprietor, to divert and exhaust any portion of the waters of the stream, and that no question was raised by the pleadings as to whether the plaintiff had gained a prescriptive right which barred a riparian right of the defendant, it cannot be considered upon the appeal from the new trial order, whether the evidence shows that the defendant was a riparian proprietor above the point at which the plaintiff diverts the waters of the stream, or whether the plaintiff had only a prescriptive right to avert the waters of the stream as against him. ID. EVIDENCE AS TO ISSUE NOT RAISED.-The rule that where an issue has been tendered by the plaintiff, and evidence upon that issue has been introduced at the trial by both parties, without objection, upon the assumption that an answer, defective in form, raises the issue, the parties cannot object for the first time upon appeal that the issue was not before the court, has no application to a case where evidence was introduced outside of any issue presented in the pleadings.

ID.-NEW TRIAL STATEMENT EVIDENCE NOT WITHIN ISSUES-PRESUMPTION AS TO OBJECTION.-It cannot be assumed, because a statement on motion for a new trial contains evidence outside of the issues before the court, that it was received without objection, the party preparing the statement being required to place therein only such errors as he desires to have reviewed, and any objections or exceptions to the introduction of evidence that may have been made by the prevailing party have no place in such statement, and if appellant would rely upon the fact that no objection was made to such evidence he must make it appear that such was the case.

ID. EFFECT OF EVIDENCE IN RELATION TO ISSUES.-Evidence introduced upon one issue is available to establish any of the issues in the case, but cannot be used to establish an issue not made by the pleadings.

ID. FINDING OUTSIDE OF ISSUES-OMISSION TO FIND.-A finding upon evidence outside of issues will be disregarded, and the failure of the court to make a finding upon an issue not presented by the pleadings cannot be erroneous. ID.-ARGUMENT UPON APPEAL-SPECIFICATIONS NOT ILLUSTRATED IN BRIEF-PRESUMPTION.-Where the transcript upon an appeal is voluminous, and points are presented in appellant's brief by mere reference to specifications in the transcript, without calling attention to the portions of the record which would illustrate the specifications, it will be inferred that the specifications are not sustained by the record. ID. OBJECTIONS TO EFFECT AS EVIDENCE.-Objections offered to the admission of instruments in evidence, which go merely to their effect as evidence and not to their admissibility, are properly overruled.

APPEAL from an order of the Superior Court of San Bernardino County denying a new trial. JAMES A. GIBSON, Judge.

The facts are stated in the opinion of the court, reported in 89 Cal. 416, and in the opinion of the court in this case.

Byron Waters, for Appellant.

The evidence having been introduced, without objection, to show the riparian rights of the defendant, and the case tried upon the theory that issue was properly made thereon, the sufficiency of the pleadings cannot be objected to upon appeal for the first time. (Cave v. Crafts, 53 Cal. 135; Spiers v. Duane, 54 Cal. 176; Clark v. Child, 66 Cal. 91; Crowley v. City R. R. Co., 60 Cal. 630; Hughes v. Wheeler, 76 Cal. 232; Davis v. Davis, 26 Cal. 39; 85 Am. Dec. 157; Horn v. Hamilton, 89 Cal. 27679; Hill v. Birmingham Union Ry. Co., 100 Ala. 447.)

CVIII. Cal.-16