The first appeal having been dismissed, the second was taken too late to permit the appeal from the order denying the defendant’s motion for a new trial to be heard, and consequently it stands on the judgment roll alone.
No objection is made to the complaint as being insufficient to warrant the relief granted, and we think it states facts, which if true, entitle the plaintiff to such relief as is prayed for. And if no one of the facts therein stated, and which are put in issue by the answer, were contained in the findings, the *213judgment would not be disturbed unless there was an exception for the want of a finding, or for a defective finding of facts, taken according to the provisions of the Act of 1861, to regulate appeals. (Statutes 1861, p. 589.) The Court is presumed to have found the facts necessary to sustain the judgment. This point has frequently been so held. (Lyons v. Leimback, 29 Cal. 139; Hidden v. Jordan, 28 Cal. 301; Lucas v. San Francisco, Id. 591.)
The only questions arising upon the findings in such case— if any written finding is filed—are these: Are the findings within the issues? And are they consistent with the judgment ? The question is not whether the facts found are, by themselves, or when taken in connection with those admitted by the pleadings, sufficient to sustain the judgment; for, as already remarked, the findings are, in the absence of exception, aided by the presumption that the facts in issue not contained in the finding as filed, and which are essential as a basis for the judgment, were found.
The opinion of the Judge who tried the cause, stating the evidence or bis analysis of it or some portion of either, coupled with the reasons for his rulings, is always valuable, and generally of great assistance to the appellate Court in their examination of the questions arising upon motion for a new trial, or bill of exceptions or statement on appeal; but neither the opinion nor the evidence form a part of the findings of fact, though it may happen to be incorporated therein. The findings in this case are liable to the objections noticed in the opinion of Mr. Justice Sawyer, in Hidden v. Jordan. We mention this matter because the defendants’ points, which are based upon the findings, do not relate to facts—the ultimate facts in the case—but rather to matters of evidence or of opinion. When we are required to examine the findings we must discard all matters merely of evidence or opinion that may be contained therein, and look to the facts alone.
The first and second points amount in effect to the same thing. The first is, that the findings show that the plaintiffs’ ditch was not completed along the line in dispute within a *214reasonable time; rand the second is, that it was not constructed until more than five years after the ditch below that place was constructed and used by those under whom the plaintiffs claim ; and counsel insist that “ diligence in the prosecution of the work is a necessary element of title.” The substance of the points are that the title was not in plaintiffs because of the lack of diligence of those tinder whom they claim—that the rights accruing from the location of the ditch were lost or abandoned by or in consequence of their want of diligence in prosecuting the work. The fact upon which the question of diligence had any bearing was title in the plaintiffs# which was averred in the complaint and found by the Court, and therefore matter tending to prove or disprove title was matter of evidence. If it should be held that diligence in prosecuting the work after the line of the ditch was established, was an ultimate fact, the Court also found that fact. And so the objections in either view really are, that the evidence was not sufficient to prove title in the plaintiffs. Those objections can be entertained only, on motion for a new trial. The finding of the delay complained of, is not necessarily inconsistent with the finding of title in the plaintiffs, for the character of the work, or surrounding circumstances may have been such, as to excuse the delay, and the delay being proven, if the defendants were of the opinion that the excuse was not valid, they had one, and only one mode of presenting the point, and that was by specifying it as a ground of their motion for a new trial.
The remaining point is that “the findings treat as of no moment the enlargement of the plaintiffs’ ditch and as to it, we agree with the plaintiffs’ counsel, that while the finding that the plaintiffs are entitled to all the water at the place in dispute remains, the capacity of the ditch or its enlargement is of no moment. At least it is not material until the defendants establish their adverse possession, a fact which the Court found against them.
Judgment affirmed.