Moore v. Cal. Oregon Power Co.

This is an appeal by plaintiffs from a judgment notwithstanding the verdict entered for defendant in an action brought by plaintiffs upon a complaint setting forth two causes of action. Upon the first cause of action the plaintiffs asked for an injunction restraining the defendant from interfering with plaintiffs’ riparian rights to the waters flowing in the Klamath River. Upon the second, the plaintiffs asked for damages alleged to have been sustained by them by reason of the acts of defendant in depriving them of their riparian rights to the waters of said river. The plaintiffs abandoned their action for an injunction as the defendant had, prior to the commencement of said action, devoted the waters of the river to a public use.

Plaintiffs are the owners of lands which are admittedly riparian to Klamath River situated in the county of Siskiyou. Some years prior to the commencement of this action, the predecessors of the defendant built a dam at Copco in the bed of the river about ten miles above the lands of the plaintiffs. The dam was completed in 1917, and the waters of the river were by means of this dam impounded and used for furnishing power to operate a power plant constructed at Copco. This plant was built and operated for the generation of electric power to be sold, and which was sold, to the public in the various localities in the vicinity of said plant. The dam thus constructed in 1917 was raised in 1922 to a height of 126 feet and a second unit of the plant was placed in operation. The plant at Copco will be referred to as Copco No. 1.

The reservoir back of the dam at Copco has been kept full, and though it has a capacity of 85,000 acre feet of water, only the upper 5,000 acre feet is available for use in the op

The defendant in its answer, while making certain denials of the various allegations of plaintiffs’ complaint, pleads the statute of limitations and contends that it has gained by prescription the right to the entire flow of the river at its Copco plants, having used the same openly, continuously and under a claim of right for over five years prior to the commencement of this action. Practically the sole question before us is whether plaintiffs’ cause of action is barred by the statute of limitations. It is conceded the five year period of limitation applies in this ease.

The evidence shows without substantial conflict that following the construction of the dam at Copco, and up to the irrigating season of 1931, there was at all times except during the nighttime and on Sundays and holidays, a uniform and ample supply of water flowing in the river at the head of plaintiffs’ ditch to supply all the water needed for the irrigation of plaintiffs’ lands. However, there was evidence which tended to show that commencing with the irrigating season in 1931 and during that and the subsequent years, plaintiffs were not able to use the waters of the stream upon their lands. The inability of plaintiffs to so use the waters of the river during that year was due, so the plaintiffs contend, solely to the manner in which defendant retained and released

On one occasion occurring in 1931, the plaintiff, Charles F. Moore, testified as follows: “I built a dam out at the head of the ditch and plowed and scraped channels at the head of the ditch and tried to pick up more water. Q. And did you get any from that method? A. No, sir, the next day after we completed the first ditch, the dam washed away and the ditch filled up. Q. That is, by this big head of water that came down? A. Yes, sir.” This condition prevailed during the irrigating season following the year 1931.

It is this fluctuation of the stream caused by the manner in which the defendant has, beginning with the year 1931, discharged the water from its reservoir, that has deprived the plaintiffs of the use of necessary water for the irrigation of their riparian lands, and for which they were awarded damages by the verdict of the jury in this case. Defendant contends that it has operated its plant since 1931 in the

It might be well at this time to give further details respecting the manner in which the defendant operated its Copeo No. 1 plant. The defendant only released water from these plants when there was a demand for power by its customers. According to the statement of its vice-president: “The plant would begin to pick up load as soon as the customers begin to throw switches and the industries pick up load in the morning . . . from 6 o’clock until 8 in the morning, and increased from then on until our normal peak is reached about 11 or 11:30 in the morning; sometimes a little earlier, 10:30 to 11:30. . . . During the noon hour, it usually drops and then picks up again in the afternoon, not as high a peak as in the morning, and it continues until 4 or 5 o’clock in the afternoon. Then there is another drop-off in the load in the late afternoon which is picked up in the evening, and continues until 9 or 9:30 in the evening, when it begins to drop off very rapidly until midnight, and then there is a minimum interval between midnight and 6 o’clock in the morning. . . . Saturday afternoons and Sundays and holidays are normally considered' off peak; . . . the Copco No. 1 [plant] is operated with an automatic governor.”

The use of the waters of a stream in their passage through the land of a riparian owner to .operate a power plant thereon to generate electric power is as clearly within his rights as is his right to operate a mill thereon to grind grain, or to operate any other machinery than which there is no more ancient or well-established feature of riparian rights. (Mentone Irr. Co. v. Redlands etc. Co., 155 Cal. 323 , 327 [ 100 P. 1082 , 1083, 17 Ann.Cas. 1222, 22 L.R.A.N.S. 382 ]; Fall River Valley Irr. Dist. v. Mt. Shasta P. Corp., 202 Cal. 56 , 70 [ 259 P. 444 , 56 A.L.R 264 ]; Seneca Cons. Gold

The electric energy thus generated may be conveyed for use on nonriparian lands. (Mentone Irr. Co. v. Redlands etc. Co., supra.)

However a riparian owner has no right to erect machinery requiring for its propulsion more water than the stream furnishes at its ordinary stages and operate such machinery by accumulating the water. (Clinton v. Myers, 46 N.Y. 511 [ 7 Am.Rep. 373 ]; Seneca Cons. Gold Mines Co. v. Great Western Power Co., 209 Cal. at page 217, cited above.) Nor may he gather waters of the stream into a reservoir for future use, when it may best suit his convenience, and thus deprive another riparian owner of the use of the waters and service of the stream in their natural condition. (Still v. Palouse Irr. & Power Co., 64 Wash. 606 [ 117 P. 466 , 467]; Seneca Cons. Gold Mines Co. v. Great Western Power Co., supra, page 209.)

Under the law as announced in these decisions it has been held that the seasonal storage of water in a reservoir—that is, the storage of water during the wet season to be used during the dry season of the year—is not a proper exercise of riparian rights. In the language of the decision last cited where the defendant, a riparian owner, was making such a use of the stream, it was stated: (page 217) “It is plain, therefore, that the use of the stream by defendant was adverse and not in the exercise merely of a riparian right. The use was as much adverse and could have been as readily enjoined as if the diversion had been to another watershed for use on nonriparian lands.” To the same effect is Colorado Power Co. v. Pacific G. & E. Co., 218 Cal. 559 , 564 [ 24 P.2d 495 ], and many other cases decided by this court. In the Colorado Power Co. case the court emphatically stated: (page 564) “Seasonal storage of water for power purposes is not a proper riparian use, but constitutes an appropriation, so that if it continued for the time prescribed by the statute of limitations, it will ripen into a prescriptive right.”

There is no contention that the storage of the waters of Klamath River by the defendant at its Copco plant is a seasonal storage of said waters. As shown above by the statement of facts in this case, the waters of the river are stored by the defendant in its dam at Copco and used by defendant

While this evidence relates particularly to the years 1931 and 1932, the condition under which the defendant released the waters from its reservoir before that date was not materially different from that prevailing during those two years. The record shows that from the time the plant No. 1 at Copco was completed in 1922, the defendant assumed the right to use the entire flow of the stream in the operation of its plant, and under this claim it actually stored and thereafter released all the waters of the stream in the operation of its plants at such times and in such manner as best ^suited its convenience and its needs.

The manner in which the defendant stored and released the waters of the river at its Copco Plant No. 2 was admittedly a proper riparian use of said waters. (Mentone Irr. Co. v. Redlands etc. Co., supra, and other cases cited.) But the storage, retention and use of the waters of the river at Copco No. 1 was radically different from that at Copco No. 2, As we have seen, the waters at Copco No. 1 were retained for an indefinite period of time, and at times when the bed of the river below its plant at Copeo No. 1 was dry. Moreover, no water in any substantial "quantities was released during the nighttime, nor on Sundays or holidays. As we have seen, it was released to meet the convenience and needs of the defendant in the operation of its plants. Such a use of the waters of a stream deprives the lower riparian owners of their rights to the usual, natural and ordinary flow of the stream.

A riparian owner “has no right to erect machinery, requiring for its operation more water than the stream furnishes at an ordinary stage, and operate such machinery by [accumulating the water and] discharging [it] upon those below in unusual quantities. ...” (Clinton v. Myers, 46 N.Y. 511 [ 7 Am.Rep. 373 ].) This case is approved in United P. B.

Prom the foregoing statements of the law we see no escape from the conclusion that the defendant in the storage and use of the waters of Klamath River at its Copco No. 1 plant was not within its rights as a riparian owner; that such use was a nonriparian use and was adverse to the right of riparian owners. (25 Cal.Jur. 1191, see. 203.)

It has repeatedly been held that the seasonal storage of water is a nonriparian use thereof; that it is not within the rights of the riparian owner and is adverse to the rights of the lower owner on the stream. While there is no contention that the storage of the waters at the Copco dam comes within the definition of that term, the effect of such storage as is made by the defendant at Copeo No. 1 plant upon the rights of lower owners on the stream is similar in practically all respects to that sustained through seasonal storage, and differs only in immaterial respects. The storage by defendant, which is sometimes referred to as periodic storage, is often more damaging to the rights of the lower owners than seasonal storage. In seasonal storage, the waters of the stream are stored during times when the water in the stream is abundant and discharged in that part of the year when there is a scarcity of water, and often to the advantage of the lower

As the use by the defendant of the waters of the river after its completion of its Copco dam was a nonriparian use of said waters, it was adverse to the rights of the lower riparian owners. This use had its inception at the time the Copco plant was completed and the water was used.in the operation by defendant of its power plant located at that point in the year 1922. Such a use of the waters of the stream, when continued for a period of five years openly, continuously and under a claim of right so to do, gave the defendant a right by prescription to the waters of the river to the extent of such use. There is no contention but that the defendant has operated its plant for the required period of time and to the extent and in the manner required by the laws of this state to give it such right.

The law is so well-established in this state as to require no extended citation of authorities that an upper riparian owner may acquire a prescriptive right to the waters of a stream as against a lower riparian owner by an adverse use of said waters for the prescriptive period. (Pabst v. Finmand, 190 Cal. 124 , 128-130 [ 211 P. 11 ]; Miller & Lux v. Enterprise C. etc. Co., 169 Cal. 415 , 422 [ 147 P. 567 ]; Mt. Shasta Power Corp. v. McArthur, 109 Cal.App. 171 [ 292 P. 549 ].)

It is equally well-established that prescriptive rights are stricti juris and should not be extended beyond the actual user. (North Fork Water Co. v. Edwards, 121 Cal. 662 , 666 [ 54 P. 69 ]; Strong v. Baldwin, 137 Cal. 432 , 440 [ 70 P. 288 ]; Scott v. Fruit Growers Supply Co., 202 Cal. 47 , 53 [ 258 P. 1095 ].)

In the case of North Fork Water Co. v. Edwards, supra, the plaintiff had acquired the right to maintain a ditch over and across the lands of the defendant for the purpose of eon

. . . The burden of the dominant tenement cannot be enlarged to the manifest injury of the servient estate by any alteration in the mode of enjoying the former.... Eights by prescription are stricti juris, and should not be extended beyond the user . . . they [the aprons] were in the nature of changes in the mode of enjoyment, and while they might be made if not harmful to the servient estate, they cannot be made to its material injury. ’ ’ (Italics ours.)

The principle announced in that ease was applied to the prescriptive right to the use of waters of a stream, in the case of Scott v. Fruit Growers Supply Co., supra, where it was stated : (page 53) “Prescriptive rights are stricti juris and should not be extended beyond the actual user. (North Fork Water Co. v. Edwards, 121 Cal. 662 [ 54 P. 69 ].) Since the prescriptive right is limited by the extent of the use which conferred the title, the place of use cannot be changed, where to do so would interfere with the rights of others.”

In the present case the defendant after the completion of its Copco dam in 1922, used the waters of the river to operate its plant in such a manner as not to interfere with plaintiffs’ use of the waters of the river during the daytime, with certain exceptions. Having so used the waters of the stream for the statutory period of five years, it acquired the right to such use as against the plaintiffs. However this right to so use the waters of the stream must be “limited by the

In two decisions of the Circuit Court, we find it stated: “Any person may obtain exclusive rights to water flowing in a stream or river by grant or prescription as against either riparian owners on the stream or the prior appropriation of the water by other parties. But the right acquired by prescription is only commensurate with the right enjoyed. The extent of the enjoyment measures the right.” (Union Mill & Mining Co. v. Dangberg, 81 F. 73 , 91; Anderson v. Bassman, 140 F. 10 , 26.) Other decisions of this court are in line with those just cited. (Northern California Power Co. v. Flood,, 186 Cal. 301 , 306 [ 199 P. 315 ]; Pabst v. Finmand, 190 Cal. 124 , 134 [ 211 P. 11 ]; Bazet v. Nugget Bar Placers, Inc., 211 Cal. 607 , 616 [ 296 P. 616 ]; see also 25 Cal.Jur. 1178.)

In the ease of Northern California Power Co. v. Flood, supra, page 304, we find this significant language: “The right to the use of waters of a stream may be acquired, as against others entitled thereto, by taking and beneficially using the same adversely and continuously under a claim of right for a period of five years. But in such a case the right, with respect to the quantity of water therein, extends only to the quantity actually put to a beneficial use. ... In order to gain a right to the water the diverter must actually use it and the quantity used measures the extent of his right.” (Italics ours.)

While the defendant after the completion of its Copco dam used all the waters of the river in the operation of its plants, its use of said waters was such that ample water for irrigation purposes ran down to plaintiffs’ lands until the year 1931. The quantity of the water used during that period of time may have been the same as that subsequently used, and of course it was, as in all years the defendant used all the waters of the river, but the manner of its use was not the same as before 1931. This change in the manner of use resulted in as great an injury to plaintiffs’ rights as if the whole quantity of water had been diverted from the stream, as, under the conditions prevailing in 1931 and thereafter, plaintiffs were unable to use any of the waters of the river for irrigation purposes. As the injury to plaintiffs’ rights

Before concluding this opinion, however, we deem it proper to answer some of the main contentions of the defendant in support of the judgment.

Defendant’s first contention that its prescriptive right was perfected in 1927, five years after the completion of its Copco No. 1 plant in 1922, has virtually been answered by what we have already stated. It is true it gained certain prescriptive rights by the use to which it put the waters of the stream for the five year period just prior to 1927. But, as we have seen, these prescriptive rights did not include the right to change the conditions under which it acquired those prescriptive rights. There is substantial evidence in the record that up to that year the plaintiffs and their predecessors in interest received sufficient water from the stream and under conditions which enabled them to irrigate their riparian lands properly. This right as we have shown continued up to the year 1931, some two years prior to the commencement of this action. Defendant has not shown any prescriptive right to use the waters of the river under the conditions which the evidence shows that it has used them beginning with the year 1931.

The - next contention is that the use of the waters of a stream is adverse to the rights of a lower riparian owner’s rights whether or not he is damaged. A number of authorities are cited in support of this contention. The cases cited are all in actions in which injunctive, relief was asked and we are in thorough accord with the rulings contained therein. But our attention has not been called to any authority holding that damages may be awarded a riparian owner of lands for an interference with his riparian rights without proof on his part that he has actually been damaged by reason of such interference.

In the case of Collier v. Merced Irrigation District, 213 Cal. 554 [ 2 P.2d 790 ] a lower riparian owner on the stream asked for an injunction against defendant restraining it from diverting the waters of the stream. The court held that the defendant had devoted the waters continuously to a public use and denied an injunction. Plaintiff then contended that as the defendant had taken his property for a public use, that is, had interfered with his riparian right, he was .entitled to

The next contention of the defendant is included in its discussion of the “Extent of Defendant’s Prescriptive Eight.”

Defendant takes the position that, having gained a prescriptive right to use the waters of the river for the operation of its Copco plant, this right extends to the entire flow of the stream and is not limited by any rights of lower owners. In other words, it contends that having gained the right to use and regulate the stream in the operation of its

Defendant makes the further contention that there is no evidence of any change in its facilities or method of operation in 1931 and subsequent years and that any damage to plaintiffs’ property was due not to any act of defendant, but to the water shortage especially in the year 1931. It may be true that there is no direct evidence showing that there was any change in defendant’s facilities used in the operation of its plant in 1931 and subsequent years, from those employed in previous years. There must have been however, some radical change in its method of operation beginning with the year 1931, as there is substantial evidence to support the implied finding of the jury that, prior to that year, the irrigation rights of plaintiffs and their predecessors in interest, except during the nighttime and on< Sundays and holidays, were to no material extent interfered with by the operation of defendant’s plant, but that, beginning with the year 1931, and continuing during subsequent years, plaintiffs were unable to obtain practically any water from the river to irrigate their lands. We think the evidence shows that this result during the year 1931 was largely due to the extremely light rainfall during that year and the corresponding shortage of water in the river. Yet there is evidence that during the year 1931 as well as in subsequent years there were substantial fluctuations in the water as it reached plaintiffs’ property which materially contributed to plaintiffs’ inability to secure the necessary amount of water for use upon their lands. These questions were all given consideration in a previous part of this opinion and we think need not be further discussed.

Finally, defendant contends that the taking of the water right belonging to the lands of plaintiffs occurred prior to plaintiffs’ acquisition of said lands. This contention is based upon the assumption that the taking of the waters of the river by the defendant, a public utility, was when the Copco dam was completed in 1922, some years prior to the acquisition of any interest in said lands by the plaintiffs. This contention to some extent we think has been sufficiently

The judgment is reversed with direction to the trial court to enter judgment for the plaintiffs upon the verdict of the jury.

Gibson, C. J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J. pro tern., concurred.

Respondent’s petition for a rehearing was denied September 23, 1943. Carter, J., did not participate therein.