Stepp v. Williams

The defendants own certain lands in Modoc County, California, upon which there is a spring, the waters of which flow over and across the lands of defendants; plaintiffs claim a four-fifths interest in the spring and in the waters flowing therefrom under an alleged oral grant from Chas. W. Williams, deceased, the predecessor in interest of defendants. Plaintiffs brought this action to quiet their alleged title to the waters of said spring, and for an injunction restraining defendants from interfering with the said waters claimed by plaintiffs. Defendants, Judith E. Williams, both in her individual and representa

The court, in substance, found as follows: The spring, the right to the waters of which is in controversy here, is situated on the lands of the defendants, who, as to said lands, are the successors in interest of one Charles W. Williams. Continuously from and including the year 1882 to the time of his death on the twenty-fifth day of February, 1918, said Williams was the owner and in the occupancy of the land on which the spring in question is situated.

In the year 1883 Charles W. Wells, who was and at the time of the commencement of this action deceased, but in the year just named the husband of Emma S. Stepp, one of the plaintiffs herein, made homestead entry of certain land and also a desert land entry of certain other land, and after due proceedings received a patent therefor from the United States government, all said lands, as well as the plaintiffs’ land upon which the said spring is located, being situate in Modoc County. The plaintiffs are the successors in interest of said Wells in the homestead and desert entries above mentioned. The said lands of plaintiffs “are all of a dry, barren nature, and would not produce crops in paying quantities without artificial irrigation, and the said lands would be of little or no value without such irrigation, and at the times said lands were entered by said Charles W. Wells said lands were of this character, all of which was well known to said Charles W. Wells”; that either in the year of 1882 or of 1883 said Williams “told Charles W. Wells, husband of said plaintiff, Emma S. Stepp, that he, the said Wells, could have the said spring and the waters running therefrom, except a small quantity of water required by the said Charles W. Williams, not exceeding forty inches, measured under a four-inch pressure.” Wells and his wife, plaintiff Stepp, relying upon the offer of the waters of said spring so made to Wells by said Williams, thereupon “commenced the construction of a levee around said spring to restrain the

That the original amount of water “appropriated and diverted” by Wells from said spring “under grant of right” from Williams was “at least 125 inches, measured under a four-inch pressure,” but Wells, on the sixteenth day of May, 1884, granted by a deed of conveyance to one Wm. IT. Nelson, the owner of certain lands over which the said ditch was constructed, “or was to be constructed,” an undivided one-fifth interest in and to said ditch and the said water right, since which time Wells and his successors in interest have claimed, diverted, and used as their own, “and under their own right,” 100 inches of said spring and stream, measured under a four-inch pressure, “over and above any and all interest in and to the waters of said spring which they had theretofore deeded to the said William H. Nelson.”

That the plaintiffs and their predecessors in interest, for over thirty years from the time of the completion of the dam and ditch by means of which they diverted and used the waters of said spring to the time of the commencement of this' action, have “continuously, uninterruptedly, openly, notoriously, under a claim of right, and adversely to the defendants and their predecessors in interest, and adversely to said Charles W. Williams, and with the knowledge and acquiescence of said . . . Williams, diverted, appropriated, claimed, and used, 100 inches of the waters of said spring and stream . . . upon the aforesaid lands for the irrigation thereof and for the production” of the crops above mentioned and for stock and domestic use; that during all said time said number of inches of water “have been necessary and indispensable for the proper irrigation of said lands and for the production of said crops,” etc.

It is further found that ever since the completion of said dam and ditch the plaintiffs and their grantors have cleaned and maintained the ditch every year, at an annual cost of $250, and that said work of “cleaning and maintaining” has been open and notorious and was within the knowledge.of said Williams during his lifetime, and with

It was found that the payment of all taxes of whatsoever kind and nature assessed or levied against the lands of plaintiff and against the ditch and water right in question for more than five years continuously immediately preceding the commencement of this action had been made by plaintiffs.

The court also found that the waters of the spring were riparian to the lands of the defendants, but the riparian rights of the latter thereto to the extent of 125 inches, measured under a four-inch pressure, ceased to exist by virtue of the grant of said waters to the plaintiffs and their grantors, etc. But it was also found: “That during the years 1882, 1883, and 1884, a great deal of the lands of the said Chas. W. Williams lying below and west of the said spring were saturated with water and were swamped, and were thus rendered unfit for cultivation, and said defendants’ predecessors in interest required no water for the irrigation of said lands,- . . . , that the lands of said defendants and the crops growing upon the same will not dry up and wither away, or not mature, nor will the said lands, nor the whole thereof, or any part thereof become unproductive or of little value, nor will defendants be compelled to abandon the cultivation of said lands (as alleged in the complaint), if they are deprived of the said 100 inches of the waters of said spring,” etc.

The judgment awards to plaintiffs the first 100 inches of the waters flowing from said spring and the stream, measured under a four-inch pressure, and quiets their title thereto, and enjoins defendants or their agents, etc., from interfering, with or in any manner obstructing the right of the plaintiffs to take and divert in the manner described by the findings said number of inches of the waters flowing from said spring.

This appeal is from said judgment by the alternative method (Code Civ. Proc., secs. 953a and 953b).

The findings above recapitulated are attacked upon the ground that there is no evidence to provide them with the requisite support. The several assignments under this head constitute the principal bases for the claim that the judgment should be reversed.

It should first be explained that both Charles W. Williams, the original owner of the land on which the spring the right to the waters of which is here in controversy is located, and the predecessor in interest of defendants, and Charles W. Wells, who located and owned the lands now owned by the plaintiffs and to and for the benefit of which the plaintiffs claim the right to take the waters of said spring, were deceased at the time of the commencement of this action; that Judith E. Williams, defendant executrix, and Gary Williams, her codefendant, are, respectively, widow and son of said Charles W. Williams; that plaintiff Emma S. Stepp is the widow of Chas. W. Wells, deceased, she, however, having intermarried with one Stepp after the death of said Wells, and that the plaintiff Mary V. Graham is the daughter of said Emma Stepp by her former husband, Wells.

As the findings show, the spring in controversy is located in a comer of the Williams lands, which are, of course, riparian thereto. There are two springs in near proximity to each other, one being referred to in the testimony as the North or Warm spring and the other the South spring, the latter spring being also on the Williams lands. It is from the North or Warm spring that the plaintiffs claim the right to take and divert and convey the waters to their lands.

It should further be explained that there is testimony tending to show that a considerable portion of the Williams land situated near these springs was of a swampy or marshy character and that, therefore, as to that portion of said land, there was no necessity for artificial irrigation. There was, however, a small acreage of the Williams lands near the springs, variously estimated by the witnesses as embracing from thirty to forty acres, which, to make it productive, did require irrigation at the time of the alleged gift of the waters of the North spring by Williams to Wells.

The Williams and the Wells lands, as well as lands owned by other parties, were situated not far distant from Pitt Eiver. Much of the Williams lands was irrigated by means of a large ditch through and by which the waters of said river were diverted and used for agricultural purposes. There were several thousands of acres of land irrigated by means of this ditch (generally referred to by the witnesses as the “Big ditch”), the lands so irrigated being owned by different parties, including, as stated, the Williams lands. These lands were situated east and northeast of the Wells ditch, and the evidence shows that in irrigating said lands from; the “Big ditch” a large quantity of the. waters diverted through said ditch would get away and become “waste waters,” which flowed sporadically—that is, whenever particular lands entitled to the use of said waters were being irrigated—toward the

There is no dispute as to the fact that the climate in the locality in which the lands of the plaintiffs are situated is of extreme aridity, and that, consequently, said lands are dry and barren and would be wholly useless and worthless for the production thereon of the usual agricultural crops and garden truck without artificial irrigation.

It is also undisputed that in the year 1883, when Wells made the homestead and desert land entries mentioned in the findings, the lands which were thus taken up by him were covered with sagebrush, the removal of which, to render said lands available for practical agricultural purposes, was absolutely necessary. The evidence discloses that, having in mind the location of these lands, Wells first set about to find a water supply for the irrigation of the same, and, according to the testimony of the witness Cable, had a conversation with Charles W. Williams, the predecessor of the defendants, in which said Williams said to Wells that if he (Wells) could raise the dam then surrounding the spring in question to such a height as would facilitate the flow of the waters therefrom into a reservoir or ditch he could have all the water of said spring, except a quantity sufficient to irrigate the thirty or forty acres near the spring, referred to in the findings, for the purpose of irrigating his lands and for domestic purposes. This conversation occurred before Wells had taken decisive steps looking to the due location of the lands. It is further made to appear by the evidence that, acting upon and accepting this offer by Williams, Wells immediately proceeded to construct a ditch connecting the spring with his lands. The distance between the spring and the said lands is approximately seven miles. It appears that he was a man of limited means and as a result was required to prosecute the work of construction with a degree of diligence only which was commensurate with his financial ability. The consequence was that the work of constructing the ditch covered a number of years. In fact, the undisputed evidence is that Wells began the work of building the ditch in the year 1883 and finished it in the year 1888, the total cost thereof, not including the labor

After the completion of the ditch, Wells, on the twentieth day of October, 1888, filed and on the same day caused to be recorded in the office of the county recorder of Modoc County a written notice whereby he gave notice that he had “appropriated all the water from the springs commonly known as the Williams Springs situated in the [describing the Williams lands] ... to the extent of 400 inches of water measured under a four-inch pressure.” Said notice was also at that time posted at the spring in question, the point of diversion of the waters thereof.

■ The ditch, as constructed, passed over and through a portion of the land of Williams and in close proximity to the latter’s residence. The ditch also passed through and over a portion of the land of one W. H. Nelson, which adjoined the lands of Williams, and, as the findings show, Wells, as a consideration for the right to run the ditch over and through the land of Nelson, conveyed by deed to the latter a one-fifth interest in said ditch and the water right connected therewith. This deed was recorded in the office of the county recorder of Modoc County, at the request of said Nelson, on the second day of June, 1884. It may also be stated here that Williams, having later become the owner by purchase of the Nelson land over which said ditch passes, likewise became the owner of Nelson’s one-fifth interest in the ditch and the water right.

The undisputed evidence also shows that, while the work of constructing the ditch was in progress, Wells made material and extensive improvements on his lands, erecting thereon a house in which to live, erecting fences around the lands, removing the sagebrush thereon and otherwise putting the lands in a condition suitable to use for agricultural ahd other like purposes. He planted a small orchard on the land and raised a limited amount of garden products and produced alfalfa and cultivated the wild hay growing thereon. The water for these purposes, prior to the completion of the ditch, was hauled to the lands by Wells, by what particular means the record does not disclose.

As stated, the work of building the ditch was completed in the year 1888, from which time until after the death of C. W. Williams, which occurred on the twenty-fifth day of

There is testimony by a large number of witnesses—persons who had either been employed on the Wells ranch or at times had been in possession of it under leases—that the water from the spring was diverted by means of the ditch in question to and used upon said ranch in the irrigation of from 200 to 250 acres thereof for upward of thirty years or more without molestation or protest from or by Charles W. Williams. The same witnesses, as well as Mrs. Stepp and her son, testified that every year during the period above mentioned, Wells and, subsequently to his death, Mrs. Stepp, caused the ditch to be cleared of moss growing and debris accumulating therein from one end of the ditch to the other—that is, from the Wells ranch to the spring—and that the expense each of said years of performing that work averaged in money the sum, approximately, of $250. Some of the work of clearing the ditch of the obstructions which impeded the free passage of the waters of the spring through the ditch to said ranch necessarily was done on the portion of the Williams land over which the ditch passes and, as seen, near the residence of Williams, and the witnesses just referred to testified that at no time did C. W. Williams or any member of his family, or anyone acting for him, ever interfere with or protest against such work being so done either on his premises or at the springs. In fact, it appears that on one occasion when Wells was building the ditch and before its completion, Williams, at the request of Wells, performed some work on the ditch near the spring, for which Wells compensated him to the extent of $27 or thereabouts. On another occasion, Mrs. Stepp testified, said Williams was present while she had some Indians cleaning the ditch, and at that time Williams not only did not protest against the cleaning of the ditch but had an Indian employee of his, who was with him at the time, to show the other Indians how to do the work properly. In brief, as to O. W. Williams’ attitude relative to the maintenance of the ditch, there is evidence showing or at least plainly tending to show and sufficient to support a finding to that effect, if the trial

It further appears that in the years of 1916 and 1917 a controversy arose between the plaintiff and the Williamses over the waste waters flowing from the “Big ditch,” some of which, as seen, would on occasions drift into a swale near the Wells ditch and thence by seepage into said ditch, often filling the same to the point of overflowing. The Williams people claimed that the plaintiffs were entitled to no part of said waste water and insisted upon their right to impound the same for their own exclusive use and purposes. Williams, it appears, had constructed a flume across the Wells ditch for the purpose of conserving said waste waters and thus had prevented the flow of the same into said ditch. A conversation occurred early in the year 1917 between the plaintiff, Emma S. Stepp, and Gary Williams, one of the defendants, and in the presence of the witness Graham, a

There is testimony that the spring in question was the only available source affording a definite supply of water of a sufficient flow for the necessary irrigation of the Wells lands; that the Wells ditch, if kept clean and free from sediment and other obstructions, has a carrying capacity of at least 200 inches of water; that for many years—in fact, continuously from the time that the ditch was completed down to the time of the obstruction thereof by the damming up of the ditch by the defendants in August, 1918 (after the death of C. W. Williams)—at least 125 inches of water, measured under a four-inch pressure, over and beyond the thirty-five or forty inches of water, likewise measured, which the court found that Chas. W. Williams had reserved' for use on "the thirty-five or forty acres referred to above, flowed into the ditch from said spring and thence to the lands of the plaintiffs; that, as seen, one-fifth of said amount of said waters (twenty-five inches thereof) was conveyed by Wells to William H. Nelson; that the amount of the water so conveyed and reaching the lands of plaintiffs was necessary for the proper irrigation of fruit trees, crops of hay, and garden truck produced thereon and for stock and domestic purposes. It is true that there was no testimony introduced showing that an exact measurement had ever been made of the waters flowing through the ditch from the spring, but a civil engineer did testify that the ditch, at a certain point therein, was capable of carrying five or six hundred inches, while there was other testimony, based upon the observations and judgment of those thoroughly acquainted with the ditch for many years, to the effect that 100 inches were required for the necessary uses of the plaintiffs, and that the latter, until their ditch was interfered with in the year 1918 by the defendants, as above explained,

[1] The above rather general resume of the evidence is taken mainly from the testimony of witnesses introduced by the plaintiff and is clearly confirmatory of the declaration made in the outset hereof that the findings are well supported.- Indeed, as above suggested, there is upon some of the points little if any substantial variance between the testimony received upon behalf of the plaintiffs and that of the defendants. The latter themselves in effect admitted that some water from the spring in question had continuously for many years been diverted from the spring into the Wells ditch and thence to the Wells ranch. They claimed, however, that the said ditch, because of not being of the proper grade, was incapable of carrying more than thirty or forty inches of water from the spring to the Wells ranch, and that thus no greater number of inches of water from the spring had ever been diverted into the ditch. This testimony, however, was based upon observations made just before this action was commenced and at a time when the defendants had refused to permit the plaintiffs to go upon their land, as the latter had always theretofore done without being interfered with, for the purpose of clearing the part of the ditch thereon of such obstructions as had accumulated therein during the months the ditch was not in actual use. And, in this connection, this pertinent suggestion may well be ventured: That it is not probable that Wells and his successors, who own approximately 300 acres of land wholly worthless for agricultural purposes without artificial irrigation, would have constructed at an expense of $2,000 and maintained at a yearly cost of approximately $300 a ditch the carrying capacity of which would not exceed thirty inches of water, which, according to the testimony, would irrigate not to exceed thirty or forty acres of land. But, be that as it may, upon- the question of the carrying capacity of the ditch there is, as we have shown, positive testimony for plaintiffs in direct conflict with the testimony for the defendants last referred to. There is the further claim, though (and this was the main theory upon which the defendants resisted at the trial the right of plaintiffs to more than thirty or forty inches of water from the spring, if any at all), that by far the greater portion of

We are now brought to a consideration of other legal points arising and involved in this controversy.

The plaintiffs contend that the evidence and findings show that O. W. Williams conveyed to their predecessor in interest by an executed parol grant the waters of the spring in question and that also they acquired a tide to said waters by adverse user or prescription. On the other hand, the defendants, in addition to the contention that the findings

[3] There is no legal proposition better settled in this state than that the interest here claimed by the plaintiffs is an estate in real property, and that a conveyance or an agreement to convey such an interest is within the statute of frauds and must, therefore, be in writing. (Hayes v. Fine, 91 Cal., 391 , 398, [ 27 Pac. 772 ], and cases therein named; Churchill v. Russell, 148 Cal. 1 , 4, [ 82 Pac. 440 ].)

[4] It is believed, however, that the gift of the waters to the predecessor in title of the plaintiffs involved an executed parol grant of said waters. It is true that Wells did not, upon being given the right to the waters of the spring, proceed immediately to use the same. In the very nature of the case this was impossible. But he did proceed at once with the preliminary preparations essential to the putting of the waters to use and prosecuted those preparations as expeditiously as the circumstances and conditions and the nature of the grant would permit, and this, we think, was sufficient in such a case as this to constitute an executed parol grant. However, if that position were logically assailable, it would seem to us that there can be no doubt that the evidence establishes in the plaintiff title to the waters by prescription or adverse user.

In the first place, it is to be noted that in the year 1888 Wells posted a notice of the appropriation of 400 inches of the waters of the spring at the spring, the point of diver

[6] But this case may, in strict harmony with the evidence and the findings, be considered upon the theory that the use of the waters of the spring by Wells and his successors, the plaintiffs herein, was under a license from the predecessors in interest of the defendants, and that the better doctrine of the case, and one upon which it may

The eases applying the doctrine referred to, where the proved facts and circumstances are such as we have in the instant case, are numerous, both in this and other jurisdictions, and among them are, notably, Churchill v. Russell, 148 Cal. 1 , [ 82 Pac. 440 ]; Stoner v. Zucker, 148 Cal. 516 , [ 113 Am. St. Rep. 301 , 7 Ann. Cas. 704, 83 Pac. 808 ]; Roseberry v. Clark, 23 Cal. App. 549 , [ 138 Pac. 923 ] ; Smith v. Green, 109 Cal. 228 , 234, [ 41 Pac. 1022 ]; Blankenship v. Whaley, 124 Cal. 300 , 304, [ 57 Pac. 79 ]; Flickinger v. Shaw, 87 Cal. 126 , 131, [ 22 Am. St. Rep. 234 , 11 L. R. A. 134 , 25 Pac. 268 ]; Raritan Water Power Co. v. Veghte, 21 N. J. Eq. 475 ; Rerick v. Kern, 14 Serg. & R. (Pa.) 271, [ 16 Am. Dec. 497 ]. See, also, comment of Professor Freeman on the last-named case in 16 Am. Dec., p. 501 et seq.

It is sufficient to refer specifically herein to a few only of the above cases to illustrate the application to a case of this kind of the equitable doctrine or principle mentioned.

Churchill v. Russell, as in the case at bar, involved the question of the validity of an executed parol license given by the plaintiff to the defendants to take the waters of a certain stream known as Butte Creek, in Siskiyou County. The plaintiff’s predecessor in interest had, many years prior to the giving of said license, duly appropriated all of the waters of said stream. Before permission to divert the waters of the stream to their land was given by one Boyes, plaintiff’s .predecessor in title, the defendants had an interview with Boyes, in which they said to the latter

In Stoner v. Zucker, 148 Cal. 520 , [ 113 Am. St. Rep. 301 , 7 Ann. Cas. 704, 83 Pac. 810 ], Mr. Justice Henshaw, after reviewing some of the cases exemplifying the application of the, principle, with characteristic clearness, thus summarizes the rule as applicable to cases similar in their facts to the one before us: “The recognized principle, therefore, is that where a licensee has entered (upon the premises of another) under a parol license and has expended money, or its equivalent in labor, in the execution of the license, the license becomes irrevocable, the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his structures, or, in general, his rights under his license, and the license will continue for so long a time as the nature of it calls for.”

The rule as it is stated in Raritan Water Power Co. v. Veghte, 21 N. J. Eq. 475 , supra, as follows, is noticeably applicable to the facts of this case as proved and found: “To the extent that the license is executed, equity will not disturb it or permit its revocation. • Where improvements of a permanent nature have been made by a person on his own land, the enjoyment of which depends upon a

Without further quotation from the above-cited cases, all of which are illuminating upon the proposition in hand, it is to be said that the rule to the extent that it is announced in those cases is sustained by the courts of a majority of the American state jurisdictions. The case of Kinsell v. Thomas, 18 Cal. App. 683 , [ 124 Pac. 220 ], while not as to the facts precisely this case, applies the doctrine to an executed parol grant of real property.

The findings, supported as we think by sufficient evidence, brings this case (as has already been stated) clearly within the rule as it is declared in the California cases and the New Jersey case above quoted. Here, as we have seen, the predecessor in title of the plaintiffs, relying upon the grant of the waters of the spring to him by the predecessor of the defendants, not only made valuable and expensive improvements upon his own land but went to great expense in digging a ditch for the purpose of securing the use of the waters so granted to him. Not only that, but he maintained the ditch and the dam around the spring for many years at a large annual outlay of money and labor and with the actual knowledge not alone of the predecessor of the defendants but of the defendants themselves. It seems to us that if there ever was a ease where equitable estoppel should intervene to prevent injustice, this is the case, for it would be manifestly inequitable and unjust to permit the defendants, upon the facts as they were proved and found, to deny the validity of the parol grant or license (if under the facts the latter, technically, be the appropriate characterization of the transaction) upon which the plaintiffs rely for their title to the waters in dispute.

It is further objected that the findings and the judgment are fatally uncertain in that they fail to find and adjudicate the paramount right and define the right of the defendants.

We are of the opinion that the decree is, under.the peculiar circumstances of this case, sufficiently certain and definite in the adjudication of the respective rights of the parties.

The court found that the natural flow of water from the spring was 175 inches, measured under a four-inch pressure. It also found, as seen, that the plaintiffs were entitled to the first 100 inches of the water of said spring likewise measured, and upon evidence by the defendants themselves that an inch of water to the acre would be sufficient to fulfill the terms of the reservation by their predecessor, that the defendants were entitled to forty inches, measured under like pressure, which were reserved by their predecessor wdien he granted the said waters to the predecessor of plaintiffs. These findings, as we have shown, are sufficiently supported evidentially. While the decree does not specifically state the amount of water that the defendants are entitled to take from the spring, it is obvious that if, as

We have found no reason for disturbing the judgment and it is, therefore, affirmed.

Burnett, J., and Prewett, P. J., pro tem., concurred.