Bloss v. Rahilly

Plaintiff sought by this action to have his rights determined in and to the natural flow of Duck Creek, sometimes known as Duck Slough, and in and to certain foreign waters flpwing in said creek; to obtain an injunction enjoining defendants from interfering with said rights; and to recover damages for such interference. Plaintiff had judgment upon a trial by the court sitting without a jury. Defendants appeal from said judgment.

Plaintiff is a lower riparian owner and defendants are upper riparian owners upon said Duck Creek which is a continuation of Mariposa Creek. This watercourse has its source in the foothills of Mariposa County and flows in a general westerly and southwesterly direction through the county of Merced and into the San Joaquin River. The natural flow of said creek ordinarily starts in November of each year and continues into the late spring or early summer of the following year depending upon the amount of rainfall. Such natural flow has been known to cease as early as April in some years and to continue as late as July in other years.

In recent years the flow of said creek has been increased and water has flowed therein during the summer months as the result of the introduction into the watershed of certain foreign waters. These last-mentioned waters have been brought from the Merced River and have found their way into Duck Creek above the lands of plaintiff and defendants

In 1932, the El Nido Irrigation District built a dam across the stream above the lands of plaintiff and defendants and, purporting to act under some arrangement with the Merced Irrigation District, the so-called El Nido diversion commenced whereby some of the foreign water was diverted from the stream. Since that time there has been only approximately 2y2 to 4 second feet of foreign water in the stream. Plaintiff herein brought an action to enjoin the above-mentioned El Nido diversion and while it appears that said action was tried, our attention has not been called to anything in the record showing the result thereof. Another action was brought by the East Side Canal and Irrigation Company against numerous persons, including all the parties to the present action, seeking to have determined the rights of all of said parties in and to the waters of Duck Creek and to enjoin the claimed diversion of said waters by the said parties in excess of their rights as determined by the court. In that action, all parties to the present action filed answers setting up their claimed rights in and to the waters of said Duck Creek. Plaintiff herein and defendants herein claimed rights in that action both as riparian owners and as appropriators. The trial court in that action found and decreed that plaintiff herein, George S. Bloss, Jr., owned certain lands riparian to Duck Creek and was entitled to all the rights of a riparian owner with respect to said creek; that he was also the owner of the right to appropriate 20 cubic feet of water per second of the water of said creek for the irrigation of his lands; that defendants herein, Mamie P. Rahilly and Peter Rahilly, Jr., owned certain lands riparian to Duck Creek and were entitled to all the rights of riparian owners but that none of their ripa

Defendants took this appeal from the entire judgment but they attack only the portion thereof dealing with foreign water. Before discussing the contentions of defendants herein, it is appropriate to state that it is settled in this jurisdiction that so-called foreign waters are subject to appropriation. In Crane v. Stevinson, 5 Cal. (2d) 387 , this court said at page 394 [ 54 Pac. (2d) 1100 ], “In view of the later definition of state policy in relation to the conservation and use of water, as expressed in the Water Commission Act, and in the recent constitutional amendment (art. XIV, sec. 3) on that subject, there should remain no present doubt that so-called foreign waters are now subject to appropriation under the laws of this state. The fact that where such waters have been brought into a stream as the result of abandonment by another appropriator there is no way to compel him to continue such abandonment, necessarily affects the value- of the subsequent appropriation right, but does not affect the existence of the right, subject to the limitation caused by the nature of the water supply in question.”

The complaint in this action contained two counts. The first count was based upon plaintiff’s riparian rights in the natural flow and the second count was based upon plaintiff’s appropriation rights in the foreign waters. The trial court decreed that both plaintiff and defendants were owners of land riparian to Duck Creek and “entitled to use and enjoy the natural flow of the waters of said creek for the irrigation of their lands . . . having due regard to the like right of the said plaintiff and the said defendants ’ ’, but that neither plaintiff nor defendants, ' ‘ as such riparian owners have any right,

Defendants first contend that, “A lower riparian owner may not take all of the foreign waters in a stream by virtue of an appropriation as against an upper riparian who needs such water to cultivate crops upon his riparian land.” They base said contention upon the wording of section 11 of the Water Commission Act of 1913 as amended. (Deering’s Gen. Laws, 1937, Act 9091.) Said section provides in part, “And all waters flowing in any river, stream, canyon, ravine or other natural channel, excepting so far as such waters have been or are being applied to useful and beneficial purposes upon, or in so far as such waters are or may be reasonably needed for useful, and beneficial purposes upon lands riparian thereto, or otherwise appropriated, is and are hereby declared to be public waters of the state of California and subject to appropriation in accordance with the provisions of this act.” Defendants argue that as the foreign water in question “may be reasonably needful for useful and beneficial purposes upon” defendants’ riparian land, it falls within the exception set forth in said section and is not subject to appropriation. This argument is based upon their construction of but a portion of one of the many sections of the act and, in our opinion, a reading of the entire act and a consideration of the declared public policy of the state, leads to the conclusion that the construction urged by defendants cannot be sustained.

The main purpose of said act was to provide an orderly method for the appropriation of the unappropriated waters of the state and, to that end, a state water commission was created and was vested with certain powers. We find nothing in the act which purported to enlarge the rights of riparian owners as such or to curtail the rights of appropriates. On the contrary, the language employed in the act

Defendants further contend that, “The findings fail to support the judgment as they do not find that the foreign water in which plaintiff’s right is quieted was beneficially used by him.” We find no merit in this contention. Plaintiff alleged in his complaint that “plaintiff is the owner of the right to take, appropriate and use the foreign water of the said creek to the extent aforesaid . . . ”. He further alleged certain evidentiary facts including the filing of the application, the issuance of the permit, the beneficial use of the water and the issuance of the final license as provided in the act. The trial court found that plaintiff “is the owner of the right to appropriate, divert and beneficially use . . . twenty cubic feet per second of the foreign water flowing in said creek and described in the complaint and answers in this action”. This was a finding upon the ultimate fact and was sufficient to sustain the judgment. Such finding upon the ultimate fact included a finding of all evidentiary facts necessary to sustain it and it was unnecessary for the trial court to make express findings upon such evidentiary facts. (Adams

Defendants further contend that, “An appropriator’s right to take foreign water may not be quieted where at the time of his application and the issuance of the permit thereon the water had no existence.” They cite and rely upon section 1 (d) of the act. While we believe there was sufficient evidence to show the existence of the foreign water in the creek at the time of the application, we are of the opinion that defendants are in no position to raise the point on this appeal. Plaintiff alleged in his complaint the existence of said foreign water in the creek “since 1927”. Defendants admitted in their answers the existence of said foreign water in the creek “since 1927” and affirmatively alleged its existence therein “since many years prior to 1927”. It is therefore a sufficient answer to this contention of defendants to state that said contention is based upon a statement of fact which is contrary to the admissions and allegations found in their own pleadings.

Defendants also contend that, “The right to take water as an appropriator may not be quieted where the evidence fails to show the existence of the water in the quantity quieted and the beneficial use and reduction to possession of such water.” The correctness of the foregoing statement as an abstract proposition of law may be assumed but we do not believe that such assumption is helpful to defendants here. We have heretofore stated that the evidence as to beneficial use by plaintiff stands uncontradicted. Defendants concede that plaintiff testified that after foreign water became present in the stream he “used up to 20 feet” under his application for appropriation and that he “used 20 feet or more under his appropriation if it was available”. Defendants claim that there is uncertainty in the testimony as to what portion of the water used by plaintiff was foreign and what portion was natural. We believe, however, that the testimony was as certain as the circumstances would permit. Of course, the natural flow and the foreign water became mingled in the stream during the season of the year when there was a natural flow. After the natural flow ceased, there was only foreign

The next contention of defendants is that, “An open and notorious use under claim of right of foreign waters by an upper riparian is sufficient to gain him a prescriptive right to such water as against a lower riparian who claims a right to such water by appropriation.” We may assume the soundness of this proposition as an abstract statement of law, but the trial court found against defendants’ claim to a prescriptive right and the evidence sustains said finding. A peculiar situation was presented in this case by the nature of the flow of stream in its natural state and the nature of the flow of the stream as changed by the introduction of foreign water into the watershed. During a portion of each year these waters were mingled. Defendants had erected a dam which they were admittedly entitled to use for the purpose of diverting some of the natural flow for use on their riparian lands. At certain times there was undoubtedly water in the stream in excess of the quantity necessary to meet all the desires of defendants and to satisfy all the rights of plaintiff. During such times, the use of the water by defendants, which did not interfere with the rights of plaintiff, could be of no

The final contention of defendants is that, ‘ ‘ The judgment is uncertain and insufficient. ’ ’ Defendants refer to the portion of the judgment in which it was decreed, “That plaintiff is the owner of the right to take, divert, and appropriate twenty cubic feet per second of the foreign water flowing in said creek, referred to and described in the complaint and answers herein, but the defendants have no right, title, interest or estate of, in or to any of the foreign water flowing in said creek.” They state that, “Prom the judgment it is impossible to determine when the foreign waters begin to flow, in what quantities they flow, what particular waters they include or what portion of the stream can be attributed to natural flow.” We do not believe it was either necessary or possible for the court to adjudicate these matters. The judgment decreed with certainty that plaintiff was the owner of the right to appropriate twenty second feet of the foreign water flowing in said creek. It is entirely apparent from the facts above set forth that the foreign flow, as well as the natural flow, was and is variable. Obviously, when there is less than twenty second feet of foreign water in said stream, plaintiff’s right to appropriate then extends only to such foreign water as may be present. The claimed difficulty which defendants may have in determining what amount of water they may take at any given time by virtue of their riparian rights is a difficulty inherent in the nature of the flow of this stream and is not a difficulty caused by any deficiency in the provisions of the judgment. In our opinion,

The judgment is affirmed.

Shenk, J., Carter, J., Curtis, J., and Gibson, C. J., concurred.

Edmonds, J., not having been present at the argument of this case, did not participate in its decision.