Hunceker v. Lutz

The two actions, numbered as stated above, were consolidated for the purposes of trial and were presented to this court upon one transcript, heard as one cause, and will be so considered in this opinion. The action involves the validity, priority, and extent of water rights claimed by the respective • parties in the waters of Rock Creek, a natural stream situated in the county of Shasta.

The action was brought by the plaintiff to quiet title to 120 inches measured under a four-inch pressure of the waters running and being in said Rock Creek. His claim or title thereto is based upon prescription or adverse use. The respondent’s land consists of forty acres situated in the vicinity of said Rock Creek and susceptible of irrigation therefrom.

Prior to the commencement of this action and on or about the nineteenth day of June, 1908, a 'judgment was made and entered in the Superior Court of Shasta County adjudging and decreeing that the grantors and predecessors in interest of the appellants herein were the owners of and entitled to take and receive from said Rock Creek, through a certain ditch known as and called the Stone ditch, 500 miner’s inches of water prior to any right, title, or interest of the plaintiff in this action to any of the waters of said Rock Creek and also enjoining and restraining the plaintiff from taking any waters from the said Rock Creek until after the grantors and predecessors in interest of the appellants herein had first had and received such 500 miner’s

The supply of water thus caught up by the plaintiff being shut off in the fall of 1913, a ditch of about thirty rods in length was constructed by him in the month of January, 1914, and on or about the eleventh day of March, 1914, the plaintiff herein filed a notice appropriating 120 inches of the waters flowing in Rock Creek at a point on said stream below the mill herein referred to and in that year began the diversion of water directly from the stream. On or about the fifth day of October, 1918, upon proceedings instituted therefor and based upon the judgment herein-before referred to, the plaintiff was cited to show cause why he should not be punished for contempt for violation of said judgment during the seasons of 1917 and 1918, and after various hearings upon said order to show cause, the plaintiff in this action was on the nineteenth day of Febru-i ary, 1919, adjudged to be in contempt of the superior court of Shasta County by reason of his violations of the judgment and decree entered against him and in favor of the grantors and predecessors in interest in 1908, as hereinbefore stated. After the institution of the proceedings herein referred to and before judgment was entered therein, the plaintiff on the thirteenth day of February, 1919, began the actions now before this court.

The appellants now assign ten separate reasons why the judgment of the lower court should be reversed, the first, second, third, and fourth of which are in substance to the effect that the decision of the trial court that the plaintiff is the owner of and entitled to the use of 120 inches of water measured under a four-inch pressure prior to any of the rights of the appellants herein, and that said title was acquired by prescription and adverse use, is not supported ■by the evidence. Objections are also urged to the ruling of the court in relation to the admission of testimony; also that there is no evidence to justify the award of the continuous flow of the waters awarded to the plaintiff. [1] One of the grounds assigned as the reason for an appeal herein is that the court erred in overruling appellants’ demurrer to the plaintiff’s amended complaint. This objection, at the time it was passed upon, would seem well taken. The seventh paragraph of the plaintiff’s complaint, in which he attempts to set forth his title to the waters of Rock Creek, is in the following language: “That the water heretofore diverted by plaintiff from said Rock Creek by and through said ditch on to the lands and premises of plaintiff, as aforesaid, would not exceed one hundred twenty (120) inches of water measured under a four (4) inch pressure, and that said plaintiff is the owner of and entitled to the possession, and claims the right to divert through said ditch and to use upon said land for stock and domestic purposes and for the purposes of irrigation, as aforesaid, one hundred twenty (120) inches of water measured under a four (4) inch pressure.”

The defendants demurred specifically to the plaintiff’s complaint and urged that the paragraph herein referred to does not state a cause of action in that it cannot be ascertained therefrom what quantity of water the plaintiff used. It is apparent from a reading of the paragraph that this contention is well founded. This defect in the complaint is not cured by any allegations elsewhere contained therein. The defendants, however, after the overruling of their demurrers, proceeded to file answers, not simply denying the allegation of the plaintiff’s complaint, but, proceeding to

If the plaintiff in this action has any prior right to the waters of Rock Creek, it must .be based upon some title acquired after the entry of judgment on June 19, 1908, in which it was adjudged and decreed that the grantors and predecessors in interest of the defendants in this action were the owners of 500 inches of the waters of said stream and were entitled to take therefrom that quantity of water prior to the taking of any water from said stream by the plaintiff herein. The cause was tried before the court sitting with a jury. Special issues were submitted to the jury, the court adopted the same but subsequently made its own findings in which it disregarded, in some particulars, the answers given by the jury to the special issues submitted for their consideration. Under the law the court had a right to adopt the findings of the jury or to disregard them and make its own findings. No point is made for reversal by reason of the action of the trial court in disregarding the answers given by the jury to some of the special issues submitted to them, but they are called to the attention of this court for the purpose of showing some contradictory matters which we deem, however, unimportant and not necessary to be considered. Disregarding the minor objections urged by appellants, the crucial question on this appeal is whether the following findings made by the trial court are supported by the evidence, to wit: “That for more than five years last prior to the commencement of this action, said plaintiff has diverted from said stream of Rock C’reek in and through said Hunceker Ditch, mentioned in plaintiff’s first amended complaint, 120 inches of water of the natural flow of said stream, measured under a 4-inch pressure, at the head of said Hunceker ditch and has conveyed

[2] It is not questioned and it cannot be seriously questioned that the judgment of the trial court entered in June, 1908, is final and conclusive and at that particular time established the prior rights in interest of the appellants herein to the waters of said Bock Creek as against the claims of the plaintiff, Charles F. Huneeker, in this action. That judgment not only confirms the rights in and to the waters of said Bock Creek to the predecessors and grantors of the appellants herein but further adjudges that the defendant in said action, Charles F. Hunceker, does not own any of the waters of Bock Creek and has no rights therein. It is unnecessary to cite authorities showing that this judgment, at the date of its entry, was res judicata as to the rights of the parties to the waters of said Bock Creek. Has the plaintiff acquired any title thereto as against the defendants in this action by adverse use of the waters of said stream for the statutory period of five years since 1908 and prior to February 13, 1919, the date of the commencement of this action? The testimony is practically undisputed that the use of the water by the plaintiff after June 19, 1908, down to the date of the closing of the mill, herein referred to, was simply permissive and that no adverse use was made of said waters by the plaintiff until on or about March 11, 1914. The mill referred to appears to have been under the management of one C.

This witness further testified that the mill was closed in September, 1913, but that he allowed the water theretofore used by him in connection with the operation of said mill to continue running for a period of about two weeks longer at the request of the plaintiff in this action, the testimony being as follows: “Q. When did you cease the use of this water from Rock Creek for carrying off refuse from the mill? A. Well, I think sometime during the month of September in 1913. Q. And when you ceased operating your mill, what did you do with the water? A. Turned it into the creek. Q. And did you immediately turn the water into the creek after you had ceased operating your sawmill ? A. No, I let it run for a while. Q. How long did you let it run? A. Perhaps for a week or two. Q. Why did you do that? A. Well, I did it for Mr.. Hunceker. Q. And just state what the circumstances were that caused you to do this for Mr. Hunceker, the plaintiff in this action? A. Well, he needed the water for his garden and stuff and I wanted him to have it and I thought perhaps the other people could get along without it, and he had asked me to turn it down to him and I did so. Q. When did he ask you to permit the water to run down to him? A. Well, that was probably a couple of weeks before I—well, very often, as far as that was concerned on Sundays and such times, he would say he was going home, he would work for me, he would like for me to leave the water run on the Sunday and I did that a great many times. Q. And at whose request? A. His. Q. When you say his, you mean the plaintiff in this action, Mr. Hunceker? A. Yes, sir. Q. And when was it that he requested you to permit the water to run after you had ceased the operation of your sawmill in 1913?

Upon this same question the plaintiff testified as follows: “Q. While you were up taking water from the sawdust pile after Ross Forward used it in his mill at that time, in those years from 1908 to 1914, you weren’t claiming the right to take that water adversely to the people down the creek, who had previously sued you, were you? A. When she dumped over the hill, I had a right to it because it was considered waste water. Q. It was considered waste water ? A. Wastewater. Q. And you claimed you were taking waste water? A. That is what I was taking that water there—that way. Q. You also claimed in those years that the taking of that water through the mill didn’t invade the rights of the parties who had sued for that injunction against you? A. Well, they didn’t object. Q. You claimed that you didn’t invade their rights, didn’t you? A. No. Mr. Kennedy: Q. Now, Mr. Huneeker, it was after that injunction was issued against you by this superior court, that you went up to Forward’s mill to .get water, wasn’t it? A. I did. Q. And because of that injunction, wasn’t it? A. Yes, sir. Q. Subsequent to the entry of that judgment, Mr. Huneeker, which you remember, and when you went to take Mr. Forward’s waste water from his sawdust pile, you considered that you were not adversely taking away from these defendants who had an injunction against you, any water that belonged to them, didn’t you? A. Oh, I didn’t consider I was hurting anybody. Mr. Kennedy: Q. You didn’t consider you were taking their water, is that it? A." No, sir, I was not taking their water at all. Q. You didn’t consider then that you were invading their right to any water, did you? A. I did. Q. You did consider you were or you weren’t? A. I didn’t consider that I was invading their rights at all. Q. And you didn’t claim to be? A. I didn’t claim to invade their rights. Q. At all times after that when you took water either from Forward’s mill or directly from Rock Creek, you didn’t consider you were invading their rights established by that decree? A. I didn’t think I was interfering with their rights at all. . . . Q. And for the year 1913 where did you get your water? A. Same source. Q. That is, from the flume? A. From the mill. Q. And how long was water diverted through that flume? A. Till about

There is no question and there can be no question but that during all the period now being considered the plaintiff was using waste or abandoned water coming from the Forward mill and gathered up by him at the point known as the sawdust pile. Upon this it was first sought to base the plaintiff’s claim to said waters. This claim, however, was abandoned during the course of the trial. [3] The authorities are without conflict that no prescriptive right can be based upon a permissive use or upon what is generally known and called waste waters. (Davis v. Martin, 157 Cal. 657 [ 108 Pac. 866 ]; Dannenbrink v. Burger, 23 Cal. App. 587 , 596 [ 38 Pac. 751 ]; Kinney on Water Bights, 2d ed., sec. 661; Wiel on Water Bights, sec. 57.)

The undisputed testimony hereinbefore set forth shows conclusively that the plaintiff’s right, if any, begins at a date subsequent to the year 1913. The testimony also shows that the use of the water by the Forward mill was a permissive use and for which compensation was agreed to be made and was not a nonuser or abandonment of the water so as to forfeit title thereto by the owners of the same.

[4] Has the plaintiff acquired any adverse rights to the use of said waters since the year 1913? The testimony is undisputed that the thirty-rod ditch constructed by the plaintiff was built during the month of January, 1914, and that on the eleventh day of March he filed a notice of appropriation of 120 inches of the waters of Book Creek and on that day began diverting through said ditch the waters claimed by him. The notice is as follows: “Notice is hereby given that I claim the flowing waters of Bock Creek to the extent of 120 inches, measured under á four-inch pressure; that the purpose for which I claim the said waters is for stock water, domestic purposes and irrigation (a description of the 40 acres of land owned by the plaintiff is herein set forth.) The point of intended diversion is on the south

This notice was thereafter recorded in the office of the county recorder of Shasta County. Upon this basis the respondent makes the following claims: “This action was commenced by filing of the complaint on February 13, 1919, more than five full years after respondent had commenced the construction of his ditch out of Rock Creek, where he made his present diversion. It is our contention, therefore, that the respondent’s right was initiated at the time he commenced the construction of his ditch and that the five year period would start to run from the time he openly and notoriously entered upon the creek and performed acts which unequivocally showed his intention of diverting the water from Rock Creek, and his subsequent diversion and use of the water continuously and without interruption, would, after the expiration of five years, ripen into a prescriptive right to the use of the water.”

To sustain this contention the respondent relies upon the case of Haight v. Costanich, 184 Cal. 426 [ 194 Pac. 26 ]. We will quote therefrom as follows: “However, the quantity of water to which a person may become entitled by diversion is not necessarily limited to the amount of water actually used at the time of the original diversion. Inasmuch as plaintiff’s diversion was not made under the modes prescribed by the California statutes, it is governed solely by the California law of possessory rights, as it existed prior to the adoption of such statutory methods. The cases involving water rights acquired under this law ‘lay down the rule that a right to the use of running water does not vest in possession at common law, until there has been an actual diversion and beneficial use of the water. But they all recognize, and some of them declare, that, before any actual diversion or use of the water, a claimant may acquire an incipient, incomplete, and conditional right to the future use of the water, by beginning the construction of the works necessary for such diversion and use, and, in good faith, diligently prosecuting the same toward completion. . . . There is no ease, arising prior to the enactment of the code, which holds that the party who thus in good faith began

The facts of that case, however, are so dissimilar from the one at bar that a short analysis suffices to show the inapplicability of that case to the one now being considered. In the case of Haight v. Costamich, supra, the court was considering the right of an appropriator to refer an increase of irrigation back to the construction of his works, as against the intervening riparian owner. In the case at bar the rights of appellants were established prior to the time when plaintiff undertook to make an appropriation of the waters of Rock Creek and thus could be divested only by an actual diversion and use of the waters of said stream in the manner and for the time required by the statute of limitations. The appellants’ rights were not invaded until the actual diversion and use of the waters by the plaintiff herein. The question before the court is one of adverse use and has nothing to do with the doctrine of relation. As stated by appellants: “Until the water was diverted into plaintiff’s ditch the defendants had no cause of action against him; he did not commence such diversion until March 11, 1914, and until March 11, 1919. plaintiffs could bring an action for the trespass and toll me statute of limitations. Before this time expired respondent filed the present action, and he cannot now bolster up' an insufficient claim of adverse use by the doctrine of relation.”

[5] We do not deem it necessary to discuss the riparian rights of the appellant, Northern California Power Company, Cons., further than to refer to the cases of Lux v. Haggin, 69 Cal. 255 [ 4 Pac. 919 , 10 Pac. 674 ], Gallatin v. Corning Irr. Co., 163 Cal. 405 [Ann. Cas. 1914A, 74, 126 Pae. 864 ],

This necessitates the reversal of the judgments herein, and it is so ordered.

Finch, P. J., and Shields, J., pro tern., concurred.