Silva v. Hawn

This is an action to restrain defendant from obstructing the flow of water in an irrigating ditch and plaintiff’s use thereof and to have the court decree that the said ditch is appurtenant to plaintiff’s land. Plaintiff had judgment, from which defendant appeals on bill of exceptions.

Plaintiff is the owner of sections 17 and 20 in township 13 south, range 19 east, in Fresno county, and defendant is the owner of the north half of the northeast quarter of section 16 in said township. It will thus be seen that defendant’s land lies northeast from plaintiff’s land and one-half mile from the east line of section 17. Adjoining section 16 on the north is section 9. Plaintiff claims an easement by prescriptive right over defendant’s land, as appurtenant to plaintiff’s land, for an irrigating ditch which receives its water from the Fresno Canal and Irrigation Company’s Canal at a point' in section 9, thence crossing defendant’s land and the intermediate land in section 16, running in a southwesterly direction to sections 17 and 20.

The court made the following findings: (1) That plaintiff has been the owner of sections 17 and 20 above described for more than five years last past; (2) that said land is irrigated from the canal of the Fresno Canal and Irrigation Company on the southeast quarter of section 9 (above mentioned) through and over the north half of the northeast quarter of section 16 (abovementioned); (3) that said ditch was constructed more than ten years prior to the commencement of this action by a predecessor in title of plaintiff, for the purpose of irrigating the land now owned by plaintiff and ever since its construction said ditch has been used by the plaintiff and his predecessor in title for the purpose of irrigating alfalfa, trees and vines and other growth

The court by its decree adjudged that said ditch is an appurtenance to said sections 17 and 20 and that plaintiff has the right to the uninterrupted flow of water, from the said main canal of the Fresno Canal .and Irrigation Company, through the same and that defendant be forever enjoined from interfering therewith.

Defendant challenges the sufficiency of the evidence to support findings 2, 3, 4 and 5, above stated. No question arises as to plaintiff’s right to water; defendant objects to his use of the ditch to get it.

This ease presents the not unfamiliar and sometimes perplexing difficulty of determining whether there is a substantial conflict in material portions of the testimony. We have examined the record with sufficient care to convince us that such conflict exists here. We are also satisfied that the findings have support in the evidence.

There was evidence tending to show that plaintiff went into possession as tenant of sections 17 and 20 in November, 1900, and continued to occupy the land as such tenant until October, 1902, when he became the purchaser of the land and was at the commencement of the action its owner; that when he took possession the ditch in question was constructed and was in use to bring water to the land for irrigation purposes

Witness Murray testified that since December, 1903, he has been in possession of land in section 30, a mile south of plaintiff’s land, and that water was then running in this ditch to plaintiff’s land and that witness built a ditch to his land connecting with the ditch in question in 1904 and has used this ditch continuously ever since to irrigate his land and never had any difficulty in getting water from the ditch. He testified that in 1904 he was at the headgate several times and no one was using the ditch above Silva’s land; that he was on Silva’s place in 1902, in July, and that “there was water on Silva’s place at the time coming through the ditch but didn’t know whether it was being used for irrigation or not.” Plaintiff testified that he irrigated alfalfa and grain and every year after he took possession of the land and in later years some trees and vines and grain. That his use of the ditch was open, notorious, under claim of right and with the knowledge of defendant and adversely to him we think may be inferred from the circumstances and facts appearing in the case.

It appeared that defendant was, some years before plaintiff took possession of sections 17 and 20, himself a tenant of this land under its then owner; his testimony was that he built the ditch throughout its entire length to this land for irrigating purposes and so used it during his tenancy. That he did build that part running over sections 17 and 20 is not contradicted, but his testimony that he built from the main canal to this land was in conflict with Church’s testimony and the court accepted that of the latter witness. However, defendant afterward, about the year 1899, took possession of the land in section 16 under lease and by himself or by his son in law, Clark, remained in control up to 1904 or 1905, when Clark left the place and defendant purchased the land in June, 1907. Defendant was absent from the county after 1900, but Clark had control of the land in section 16 and was

There was evidence that plaintiff spoke to Clark about purchasing a right to.use the ditch, which it is claimed was an admission by plaintiff of defendant’s right and that plaintiff was not claiming any right in himself. Plaintiff testified to this as follows: “I had that talk with Clark one time about 1903. I had that talk with Clark one time when I came up the ditch to take water down; and I asked him to write to Hawn and see what Hawn would sell me an interest in the ditch for. Afterwards, Clark reported that Hawn wanted $500.00. I told him I would not give him anything. . . . After he wrote and said he wanted $500.00 I told him I wouldn’t give him anything. Just because Hawn used to claim the ditch I told him I did not want to have any trouble; I would buy a little interest if he owned it. . . . After I had this talk with Mr. Clark about paying for water in the ditch I used it just as I did before.”

This episode by no means establishes a conclusive recognition of defendant’s right on the part of plaintiff. It seems rather to have been an attempt by plaintiff to avoid trouble by purchasing his peace which came to nothing and tended to show that plaintiff rested upon his own right in the end.

The user by plaintiff, during the irrigation season, was actual, open, notorious and not clandestine. This appears clearly by the testimony of plaintiff’s witnesses and the use was so open that defendant, or his agent Clark, could not have failed to note the fact, and if not, was such as to put him upon inquiry which was enough. (De Frieze v. Quint, 94 Cal. 653 , [ 28 Am. St. Rep. 151 , 30 Pac. 1 ].)

The element of hostility appears not only from plaintiff’s evidence but from that of Clark, who testified for the defendant. The case of Strong v. Baldwin, 137 Cal. 438 , [ 70 Pac. 288 ], relied on by appellant, is in many respects similar in its facts to those here, and is an instructive case. It differs in this, that the adverse claimant in that case paid to the owner of the land through which the ditch passed an annual rental for the privilege of nsing the ditch. The element of hostility was held to have been fully rebutted by this fact.

Plaintiff’s claim of title was as his own and exclusive of any other right. This requirement does not mean that all other persons were excluded from the use of the ditch, so long as plaintiff’s right was not taken from him. (Strong v. Baldwin, 137 Cal. 438 , [ 70 Pac. 288 ].) Plaintiff claimed the right to use the ditch for irrigating his own land, and it is immaterial that others also had a right to use it.

It was also requisite that the use should be continuous and uninterrupted for five years prior to the commencement of the action. The evidence was that plaintiff used the water whenever he needed it for irrigating purposes, and among these uses was that of watering alfalfa, grain, trees and vines. “The adverse user of an irrigating ditch through the lands of the owner, only during the cropping season, the ditch not being needed at other times, constitutes a continuous adverse user, as the omission to use when not needed does not break the continuity of use.” (Hesperia etc. Co. v. Rodgers, 83 Cal. 10 , [ 17 Am. St. Rep. 209 , 23 Pac. 196 ].)

Nothing appeared in the case to show that the ditch was assessed for taxation separate from the land or at all. It was not, therefore, necessary to show payment of taxes. (Harvey v. Meyer, 117 Cal. 60 , [ 48 Pac. 1014 ].) The law does not require an easement to be assessed, and the burden was on

The right must have been asserted under claim of title with the knowledge and acquiescence of the owner of the land. Plaintiff’s claim of right clearly appeared; defendant’s knowledge and acquiescence of plaintiff’s claim may well have been inferred from the facts. This was a matter “for the court to determine as a fact in the light of the relations between the parties and of the surrounding circumstances.” (Franz v. Mendonca, 131 Cal. 205 , [ 63 Pac. 361 ]; 146 Cal. 640 , [ 80 Pac. 1078 ].)

I do not understand that the element of “acquiescence” is to be shown independently of knowledge, in the common acceptation of that term; i. e., that an affirmative permission or consent be given in addition to knowledge of the hostile claim of right. If the owner has the knowledge which the law requires shall be imputed to him, and takes no steps to prevent the adverse claimant from his continuous enjoyment of the right' claimed by him, such owner will be deemed to have acquiesced in such use. This court had occasion in a recent ease to consider the point, in which the rule was stated. It was there said: “No particular act or series of acts is necessary to be done in order that the possession may be notorious, but any visible act which clearly demonstrates an intention to claim ownership and possession will be sufficient to establish claim of adverse possession. Such claim may be made out by visible acts, without any assertions by word of mouth. When the usé is not secret or clandestine, but open, visible and notorious, the presumption of knowledge follows. The burden is in the first instance upon the plaintiff to prove his title by prescription. After showing the continuous occupancy and use of the water as though he were the owner, for more than five years, he establishes a prima facie case. It then devolves upon the defendant to show that the use was permissive or without the knowledge of the defendant.” (Gurnsey v. Antelope Creek etc. Co., 6 Cal. App. 387 , [ 92 Pac. 328 ].)

We have thus taken up the several elements claimed by appellant to be requisite to a good prescriptive right. We think they are shown to have been sufficiently established by the evidence as found by the trial court.

The judgment is affirmed.

Burnett, J., and Hart, J., concurred.