Wutchumna Water Co. v. Ragle

This action was brought to enjoin defend ants from diverting any portion of the waters of a certain water-ditch known as the Wutchumna Ditch, situated in Tulare County, to all of which plaintiff claimed to be the owner. By their answer defendants as an affirmative defense

Upon the issues made by their pleading the case was tried by the court and findings of fact and conclusions of law followed. The findings of the court are quite full. It found that there was a parol agreement between the predecessor in interest of defendants and the Pioneer Canal Company, under which the diversion of water from said Wutchumna Ditch by said predecessor had its inception; that said predecessor, and defendants as his successor in interest, had, for a period far exceeding five years prior to the commencement of the action, continuously, openly, notoriously, and uni' Lerruptedly, under a claim of right, and adversely to plaintiff, taken and diverted from the ditch of plaintiff water sufficient to irrigate the forty acres of land described, in their answer during the months of April, May, June, and up to July 15th of each year, using a head of two cubic feet per second, and water sufficient to irrigate twenty acres of said forty acres from July 15th to August 15th and from February 1st to April 1st of each year, using a head of one cubic foot per second, which said water was taken and diverted by means of said ditch and dam referred to in their answer; and that plaintiff’s cause, of

As conclusions of law from the findings, the court decided that defendants were entitled to divert water from the ditch of plaintiff at the times and in the quantities specified in the findings just referred to, and to keep and maintain a dam in the channel of plaintiff’s ditch sufficiently high for that purpose, and then further decided: “That plaintiff provide and maintain at the point of diversion of the Jones (defendants’) ditch a permanent headgate, dam and measuring box, which shall be under the control arid supervision of plaintiff, and that defendants, or either of them, shall not interfere with the same, nor turn the water out of said Wutchumna Ditch without giving the superintendent at least one day’s written notice that they needed the water turned out for the irrigation of their said lands. Should the superintendent after notice refuse or neglect to turn out the water which they or either of them are entitled to, or less than the quantity herein awarded, defendants, or either of them, may open said head-gate and turn the water out to which they may be entitled. In case said superintendent cannot be found after diligent inquiry, defendants may post said notice above referred to aS the said dam or headgate, in lieu of delivering the same to him as aforesaid. At the end of each irrigation defendant shall promptly close the headgate and turn the water back down said Wutchumna Ditch, or notify the snperintenden'

Defendants were satisfied with the findings of fact, but being dissatisfied with the conclusions of law and the judgment entered thereon, in due time, under sections 663 and 66314 of the Code of Civil Procedure, and on the ground of inconsistent and erroneous" conclusions of law, not consistent with and not supported by the findings of fact filed, moved the court to set aside said conclusions of law, and the judgment entered thereon, and to amend said conclusions of law by striking therefrom that portion thereof above quoted, and to enter a different judgment by striking from the judgment, entered all that portion which followed and embraced the said quoted conclusions of law as a part of it. On the hearing of the motion, the court, in effect, denied it, but made an order vacating said judgment, amended its conclusions of law, and ordered and entered another judgment thereon, to which defendants duly excepted.

The amended conclusions of law, and the judgment entered thereon, differ in no material respect from that portion of the conclusions and judgment theretofore made and entered, and against which defendants’ motion was directed. The amended portion of the conclusions of law and the judgment entered, which follows its identical language, provides: “That plaintiff, prior to Jan. 15, 1904, provide and thereafter maintain a permanent dam, measuring box, and headgate at the point of diversion of the Jones (defendants’) ditch, and if plaintiff fails to comply with this order within the time aforesaid defendants may divert from said Wutchumna Ditch at said point of diversion of the Jones (defendants’) ditch the water to which they may be entitled and which they are hereby awarded, using all necessary means. That, upon plaintiff providing and maintaining the dam, measuring box, and headgate as aforesaid, defendants shall not turn water out of said ditch without giving the superintendent, ditch tender, or other agent of plaintiff in charge of said ditch, at least two

Two appeals are taken by defendants, one from the order denying their motion, as made, to set aside and vacate the original judgment and amending the previous conclusions of law, which branch of the appeal is presented on a bill of exceptions; the other is from that portion of the final judgment which follows the amended conclusions of law last made, and is presented on the judgment-roll. Both these appeals are presented together, and, as the ground urged for a reversal is common to both, we will discuss only the appeal from the quoted portion of the final judgment entered upon the amended conclusions of law, because the conclusion we reach upon the question of its validity will necessarily dispose of the appeal from the order.

The particular point urged on the appeal from said judgment based on the amended conclusions of law is that the portion thereof providing for notice to be given by defendants before they can exercise the right to take water from the ditch of plaintiff is not warranted or supported by the findings of fact, and is erroneous. In other words, it is insisted that, as it appears from the findings of fact that the defendants had acquired and possessed at the commencement of the action the absolute, unqualified, and unrestricted right to take and divert from the plaintiff’s ditch a certain quantity of water at certain times, and that such right had its origin in a parol grant, and was matured and made effectual by a use of more than five years, openly, notoriously, continuously, uninterruptedly, and adversely, and with the knowledge and acquiescence

Under the findings of the court the defendants had, at the commencement of the action, acquired a perfect and complete prescriptive right to divert the waters in question from plaintiff’s ditch. This right was acquired and per Acted by virtue of the statute of limitations. It has long been the i-tiled law in this state that the adverse possession of land for a period of time prescribed by the statute of limitations not only bars a remedy, but extinguishes the right of the person holding the true written title, and vests a perfect title in the adverse holder. (Arrington v. Liscom, 34 Cal. 365 , [ 94 Am. Dec. 722 ].) The perfect title which such adverse occupancy confers “is denominated a title by prescription, which is sufficient against all.” (Civ. Code, sec. 1007.) While Arrington v. Liscom, 34 Cal. 365 , [ 94 Am. Dec. 722 ] involved the question of title by adverse possession to land, the doctrine announced there has been xmiformly held applicable as to the prescriptive right to divert water. As said in Water Co. v. Richardson, 72 Cal. 601 , [ 14 Pac. 381 ], “So far, therefore, as the title to property is concerned, or, at all events, so far as the title to real property is concerned, prescription and limitation are convertible terms; and a plea of the proper statute of limitations is a good plea of a prescriptive right. The language of decisions with reference to water-rights has been in accordance1 with this view. (See Crandall v. Woods, 8 Cal. 144 ; Campbell v. West, 44 Cal. 646 ; Cave v. Crafts, 53 Cal. 135 .)” To the same effect are the later cases of Alta Land etc. Co. v. Hancock, 85 Cal. 227 , [ 24 Pac. 645 , 20 Am. St. Rep. 217 ];

Now, the findings show that the right to take these waters had its inception in a parol grant to the predecessors of defendants of a perpetual right to do so, and that by adverse user for over twenty years the defendants had acquired the right to take the waters from such ditch in the manner, and t • the extent, and during the periods stated in the findings. It is nowhere found by the court that the parol grant of a perpetual right had attached to it any condition or limitation as to its exercise, nor that the adverse right, found to have been acquired by and vested in defendants at the commencement of the action, was ever exercised under any conditions relative to notice, or that any notice was ever given by defendants to plaintiff, save the notice it had from the open and Aotorious use of the waters of which the court finds the plaintiff had knowledge, and in which it acquiesced. On the contrary, the finding of the court is to the clear effect that the right acquired and possessed by the defendants as against plaintiff, when th; action was commenced, was an absolute, unconditioned, unqualified, and unrestricted right to divert waters from the Wutchumna Ditch in the manner, during the periods, and to the extent that the court found. As the right so acquired is not found by the court to have been at any time exercised under any conditions as to notice, the court was without authority in its amended conclusions of law, and in the portion of the judgment complained of, to attach such conditions to the exercise of the enjoyment of the right in the future. In Allen v. San Jose Land etc. Co., 92 Cal. 138 , [ 28 Pac. 215 ], plaintiff brought an action to restrain defendants from laying pipes permanently in a ditch across his land. Defendants answered, setting up title to the ditch and water by adverse user; admitted that they intended to lay pipes therein permanently, and averred that as laid these

Under the principle declared by the authorities just cited,

As upon the facts found the court was not warranted, either in its original or amended conclusions of law, or in the first or final judgment, in requiring defendants to give any notice to plaintiff as a condition upon which their acquired prescriptive right to divert waters from plaintiff’s ditch should be exercised, both the order and judgment appealed from are reversed, and the lower court is directed to enter a judgment on the findings of fact, eliminating and excluding all

■Henshaw, J., and McFarland, J., concurred.