E. Clemens Horst Co. v. Tarr Mining Co.

This appeal is taken by the defendants, South Yuba Water Company, United Water and Power Company, James

The plaintiffs, respectively, own farms aggregating about three thousand five hundred acres, alleged to be bordering upon Bear River. They claim the right to the use of the water of the river as riparian owners. They also claim that, during each irrigating season for more than five years before the beginning of the action, they continuously, adversely to all persons and under a claim of right, have diverted from the river and used upon their lands for the irrigation thereof quantities of water amounting in the aggregate to three- thousand four hundred miner’s inches of water, whereby they have gained the right to continue to take and use on said lands said quantity of the water of the stream. They charge that in the year 1910 the defendants entered upon Bear River and its tributaries, above their said lands, obstructed the flow thereof, and diverted therefrom the waters thereof to such an extent that the plaintiffs have been thereby deprived of at least one-third of the water which they had formerly taken and used and were entitled to take and use from said river as aforesaid. The action was begun on March 17, 1911. The prayer is that the defendants be enjoined from obstructing the flow of the river, or diverting water therefrom, in such a manner as to prevent the water thereof from flowing down the channel to plaintiffs’ land for plaintiffs’ use, and that the defendants’ dams be abated and removed.

The Pacific Gas & Electric Company and the South Tuba Water Company, in a joint answer, aver that neither of them has ever taken water from the river or its tributaries except such water as it has owned and has had the right to take, under appropriations completed prior to those of any of the plaintiffs, and that the right of each of them to take therefrom and use such water as it has taken therefrom and used, is “prior in time and superior in law” to the alleged rights of the plaintiffs. This answer also alleges that the respective causes of action of the plaintiffs, set forth in the complaint, are each barred by the provisions of sections 312, 318, 319, 335, 339, subdivision 1, and 343, of the Code of Civil Procedure. The defendants, United Water and Power Company and James D. Stewart, join in a separate answer. This answer “admits” that the United Power and Water Company and

This form of pleading gives little information as to the defense relied on. We must look to the evidence to understand the real nature and character of the water rights asserted by the defendants at the trial. The South Yuba Water Company has no present right in the water of Bear River. Such rights as it had were conveyed by it to the Pacific Gas & Electric Company on December 31, 1910. We assume that it was made a party defendant because said conveyance was not recorded until after the action was begun. Stewart was and is the president and manager of the United Water and Power Company and he is not otherwise interested in the controversy.

The Pacific Gas & Electric Company claims three distinct and separate rights to divert water from Bear River. These are as follows: 1. The right to maintain a dam, known as “Bear River Dam,” at a point in the river about thirty-six miles above the lands of the plaintiffs, and thereby to divert from the river into a flume or canal known as the “Bear River Canal” a sufficient quantity of the water of the river to fill said canal, claimed to be one thousand eight hundred miner’s inches, and devote the same to public use for irrigation or other purposes. 2. The right to maintain a dam, known as the “Gold Hill Dam,” at a point in said river about seventeen miles above the lands of the plaintiffs, and thereby to divert into a flume or canal, known as the “Gold Hill Canal, ’ ’ sufficient of the waters "of the river to fill said canal, claimed to be 840 miner’s inches, and to devote it to the same public uses. 3. The right to maintain a dam, known as “Bear Valley Dam, ” at a point in the river about fifty miles above

The United Water and Power Company claims the right to maintain a dam in Bear River at a point two miles below the above-mentioned Bear Valley Dam, and forty-eight miles above plaintiffs’ lands, known as the “Head Dam,” and a ditch leading therefrom known as “Miners Ditch,” and thereby to divert from said river all the waters thereof that said ditch will carry, claimed to he two thousand one hundred miner’s inches, and to devote the same in part to public use and in part to the private use of the owner of the said dam and ditch.

It would have served to clarify the issues and would have led to more definite findings than those that were made regarding the defenses pleaded if, instead of the general statements of the answer, the defendants had set forth the facts relating to each of their several asserted prescriptive water rights, stating definitely the quantity of water they claimed for each right. The general form of the answer may have led to the erroneous theory which we find in the decision and judgment.

The findings relating to.the flow of water in Bear River state that during every year since 1845 up to the year 1910 there flowed naturally in said river at the easternmost line of plaintiffs’ land, for the use of said land, during the months of April, May, and June, a minimum of four thousand miner’s inches of water; during July, three thousand miner’s inches; during August, two thousand two hundred miner’s inches, and during September and October, two thousand miner’s inches; that these months comprise the irrigating season for plaintiffs’ lands; that plaintiffs, up to the year 1910, had always used during said months said quantities of water on their lands; that the said amounts were, are, and in the future always will be necessary for use of said lands; that during the said irrigating season of 1910 the defendants, by means of the dams and canals aforesaid, naming them, did divert, ever since have diverted, and threaten to continue to divert from said river and carry out of its watershed “more

The judgment makes no provision as to the use or diversion of water except during the months above named. It declares merely that the plaintiffs have the right to the continued flow in Bear River, every year, at their eastern boundary, during the months above named, of the quantities of water stated in the findings as flowing in said months at said boundary, and that the defendants be enjoined from diverting any water from Bear River “at any time when the waters flowing in said Bear River at said easternmost boundary of plaintiffs’ said lands, in any year at any time during the months of April, May, and June, shall be less than four thousand inches; during the month of July, less than three thousand inches; during the month of August, less than twenty-two hundred inches, and during the months of September and October, less than two thousand inches.”

The several claims of the defendants to the ownership of the above-described water rights are supported by evidence similar in character. A statement of that relating to the

The taking of the 1,520 inches of water from the river diminished its flow to that extent below the dam down to the plaintiffs’ lands. As the plaintiffs were then entitled to the full flow of the stream by their lands, this taking was an invasion of their rights, whether they used the water, or any part thereof, on their lands or not, and regardless of the fact that the water remaining in the stream may have been sufficient for their needs and uses. It was therefore adverse to plaintiffs’ rights, and a continuance thereof for five years established in the predecessors in interest of the Gas Com

The fact that the defendants, by means of new and more perfect dams, and by repairs to the canals, completed within three years prior to 1911, were enabled to and did, in the year 1910, divert more water than before, did not affect the rights to continue to divert the quantity which they had previously acquired the right to divert. And if a small part of the water so taken into the canals at said dams has always escaped from the canals through leaks in the flumes and thus has been returned to the stream below, this does not deprive defendants of the right to the quantity actually kept out of

In an action by the riparian owner to establish his riparian rights, an answer by the defendant that the action is barred by the statute of limitations, by reference to the appropriate section of the Code of Civil Procedure, is a sufficient pleading of the prescriptive right to the quantity of water claimed by the defendant, and justifies the taking of evidence and the making of findings with respect to such prescriptive right. (Alhambra etc. Co. v. Richardson, 72 Cal. 598 , 600, [ 14 Pac. 379 ]; Churchill v. Louie, 135 Cal. 608 , 610, [ 67 Pac. 1052 ].) Consequently, the court should have made findings relating to these several claims of water rights by the defendants, notwithstanding the general character of the answer. .The proper form of a judgment in such a case would be to declare the right of the respective defendants to make the diversions of water from Bear River to the quantity as to which the prescriptive right was found to be established and to permit them to continue the diversion of such quantity, but to enjoin them from making any greater diversion of the water of the river by means of improved dams or canals or otherwise. It would appear that the court endeavored to accomplish this object by declaring that they should make no diversion whatever when the water flowing at the plaintiffs’ land was less than the quantities designated in the judgment during the respective months of the irrigating season. This, in effect, would allow the respective defendants to continue their respective diversions so long as the quantity flowing by the plaintiffs’ land was not reduced thereby below the quantities specified. The objection to this form of judgment is that it puts upon the defendants a burden which the law does not attach to their prescriptive rights. The defendants’ rights were positive as to quantity and they existed regardless of the effect on the stream below. The owner of a prescriptive right thus acquired is under no obligation to go below to ascertain or inquire whether those who there have rights in the water are receiving the usual quantity or not-. His right is absolute. The consequences of his diminution of the stream must be suffered by those below. Under the judgment in this case the defendants could not safely divert the quantity of

There is no force in the claim that the evidence is too. indefinite and uncertain to support findings as to the quantity of water covered by the prescriptive right at the several dams. It is true that the transcript indicates that little importance was attributed to this point. Apparently it was obscured by other matters during the trial. But there was evidence with respect to each of the diversions, showing the capacity of the several canals and the quantity of water carried therein, that is, that they were run full when there was water enough and that when there was less all the water was diverted. The fact that witnesses differed in their evidence as to the capacity did not relieve the court of the duty of finding the facts. In proving a prescription the evidence must relate to conditions and acts occurring at a period many years before the trial, and it is seldom harmonious in the details. It is the duty of the court to compare and weigh such evidence and to reach a conclusion thereon as to the truth, according to its best judgment. A continuous adverse diversion and beneficial use of a given quantity for a single period of five years establishes the title to that quantity. The proof need not extend over the whole period from the beginning of the diversion to the beginning of the action. A failure of proofs as to some intervening period would not defeat the defendants’ claim.

The important principle in the case, we may, in conclusion, repeat, is that the rights of the defendants in the stream, with regard to quantity of water, are not to be measured by

It is perhaps necessary to add that we refer to the water naturally flowing in Bear River, and not to such waters as may have been carried into it from the Tuba or American Rivers. It appears that such additions have been made in the past by the defendants and their predecessors. They have the right to retake these waters at their pleasure. The court must take account thereof and deduct the same in computing the adverse diversions from Bear River, allowing only the natural flow taken. This will make its task more difficult, but we cannot say that it will be impossible to distinguish them.

The appellants at the trial insisted, and on this appeal they still insist, that none of the lands of the plaintiffs are riparian to Bear River, except the tract known as the Daniel P. Durst Ranch, belonging to plaintiffs Ralph H. and M. H. Durst and the estate of Daniel Durst. It is admitted that all of the lands originally abutted upon the river, but it is claimed that by reason of changes in the course of the stream before the action was begun all of it, except the above-named tract, has ceased to abut thereon, except during times of extreme high water, and has thereby lost the riparian right. It is unnecessary to consider the question. So far as the last-named plaintiffs are concerned, the riparian character of their land enables them to maintain the action, and would sustain an injunction in their favor, if they were otherwise entitled thereto. (Watson v. Lawson, 166 Cal. 235 , 241, [ 135 Pac. 961 ].) As to the other lands, it appears that the owners thereof have for more than forty years next before the action was begun diverted and used thereon practically all the waters of the stream that reach a point opposite the upper boundary of the land continuously and under claim of' right. This would entitle the plaintiffs to maintain the action against any wrongful diversion above that would diminish the stream at their place of diversion, so that it would not afford them their usual quantity. Under these circumstances, the question

Henshaw, J., Lorigan, J., Melvin, ¡T., Lawlor, J., and Angellotti, C. J., concurred.

Rehearing denied.