The second amended complaint filed herein shows that the action was instituted under section 738 of-the Code of Civil Procedure. The plaintiff at a certain stage in the trial, which was in progress under the first *553amended complaint, seems to have abandoned the effort to prove certain issues involved in the pleadings, and to have obtained leave of the court (upon conditions as to costs, etc.), to file the second amended complaint against the objection of the defendant.
The effect of this was, that the latter pleading was framed upon the theory of the original complaint filed in the action, and the cause was tried upon that basis.
Judgment was rendered for the plaintiff, and from that and an order denying a new trial the defendant prosecutes this appeal.
The latter, who is now the executrix of the last will of Cornelius Jensen, who died since this appeal was taken, alleges in support of her contention that the court erred in allowing the second amended complaint to be filed; that certain of the findings were not supported by the evidence, and were improperly made.
The gist of the action as stated in the original complaint was the same as that contained in the complaint upon which the trial was had. The amended complaint was only permitted to be filed upon terms imposed by the court, with which the plaintiff complied, and we see nothing in the action taken in the premises, under the circumstances, which worked any hardship or surprise upon the defendant. Therefore, no error was therein committed. (Code Civ. Proc., secs. 473-475; Hayne on New Trial, secs. 53, 54, 56; Farmers’ N. G. Bank v. Stover, 60 Cal. 387.)
The appellant, in support of her second point, claims that the quitclaim deed of the plaintiff to her decedent, Cornelius Jensen, dated July 1, 1879, carried with it as a servitude imposed upon the land thereby conveyed, the right to maintain a certain water ditch thereon, and use for irrigation the waters running therein; and that the evidence does not sustain the fourteenth and eighteenth findings of the fact; further arguing that *554those findings were unauthorized, as outside of the issues made by the pleadings.
There is nothing in the language of the deed itself which conveys any such right as is thus claimed, and the evidence is conflicting as to whether or not, at the time that deed was executed and delivered, any water ditch existed as an easement on the land, which had been “obviously and permanently used .by the .person ” (in this case the person being the plaintiff here) “whose estate ” was “ transferred for the benefit thereof, at the time when the transfer was agreed upon or completed.” (Civ. Code, sec. 1104.)
The evidence for the plaintiff negatived the claim that Jensen, the deceased, ever constructed the ditch on its land, or appropriated its water with its consent. On the contrary, it declares that as soon as it knew of his acts in the premises, it protested against them and held him as a trespasser.
As a consequence of this conflict in the evidence as to the existence of the water ditch as an easement imposed as a servitude on the land quitclaimed to the defendant by the plaintiff, we cannot say that the court was not justified in making the findings to which the defendant objected, notwithstanding her contention that the evidence showed such an easement as would have impliedly passed under the quitclaim deed.
Parol testimony given at the trial supports the findings objected to. The facts which the court recites therein were alleged to be true in the answer. The fourteenth finding contains almost the exact language of that pleading. The eighteenth, referring to the “ understanding as hereinbefore mentioned,” — that is, as set out in the fourteenth finding,—says that the quitclaim deed was “ executed ” in accordance therewith and “ not otherwise.” It follows necessarily, then, that the defendant ought not to be heard to complain of those findings. Because, as we have seen, the facts which they *555affirm to have existed were asserted in the answer, and if the court assented to the defendant’s allegations of facts, on which findings were thus invited, we cánnot see how it can be said that tribunal committed prejudicial error.
The record discloses nothing which would warrant a reversal of the judgment or order, and they should he affirmed.
Hayne, 0., and Belcher, C. C., concurred. The Court.For the reasons given in the foregoing opinion, the judgment and order are affirmed.