
    McDermott v. Higby.
    When the jury are directed by the Court to find a general verdict, and also to make a special finding of facts upon questions submitted to them—and ageneral verdict is returned in favor of one party, while the findings upon the special issues are in favor of the other party—the Court should render judgment in accordance with the special findings, if they embrace all the issues raised in the pleadings. If, however, there is any one issue in the pleadings, not covered by the special findings, the judgment should be rendered on the general verdict.
    Appeal from the District Court, Sixteenth Judicial District, Calaveras County.
    The facts are stated in the opinion of the Court.
    
      Tod Robinson, for Appellant.
    
      Wm. Higby, for Respondent.
   Crocker, J.

delivered the opinion of the Court—Norton, J. concurring.

This is an action to recover damages for an alleged diversion of water claimed by the plaintiff. The defendant, among other defenses, sets up an abandonment of the water right claimed by the plaintiff, by those under whom he claimed. The case was tried by a jury who were directed to return a general verdict, and also a special verdict upon several questions submitted to them by the Court. They accordingly returned a general verdict for the defendant, and a special verdict upon the questions submitted in favor of the plaintiff. Judgment was rendered for the defendant; and it is contended that in this the Court erred. Sec. 175 of the Practice Act provides, that “ where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter; and the Court shall give judgment accordingly.” It is urged, that the judgment rendered in this case is in violation of this clause of the statute. It would undoubtedly be so, if the special verdict had been upon all the issues in the case; but none of these special findings are upon the issue of abandonment; and if the jury founded their general verdict, in favor of the defendant, upon that one issue alone, the special verdict is not “ inconsistent ” with the general verdict. A special verdict upon a single point may often determine the whole case, either for the defendant or plaintiff; and in such case the special verdict would control any general verdict to the contrary. But where the special findings do not have such controlling effect—if they do not include issues which, if found for the defendant, would sustain a general verdict in his favor— the special verdict cannot properly be deemed “ inconsistent with the general verdict.” This was probably the view taken by the Court below in rendering the judgment.

The judgment is therefore affirmed.  