206 P. 638 | Cal. | 1922
This is an action by riparian owners along Fitzhugh Creek, in Modoc County, to quiet their title to all the waters of Fitzhugh Creek and enjoin the defendants from interference therewith. The defendants rely upon an appropriation of 200 inches made in 1886 and one of 50 inches made by defendant Gertrude French in September 1912, and upon adverse use of the waters of said stream from 1886 and 1912, respectively. The trial court found that there was no prescriptive right in the defendants in and to any portion of the waters of Fitzhugh Creek and adjudged that all the waters of said creek belonged to the plaintiffs as riparian owners. Defendants appeal from the judgment and attack the findings with relation to adverse use. It appears from the evidence without contradiction that in 1886 H.G. Payne posted a notice of appropriation of 200 inches of water at the point of diversion on Fitzhugh Creek above the land of the plaintiffs; that at the same time he also posted a notice of appropriation of 200 inches of water on a stream known as Mill Creek and recorded copies of such notices. The watersheds of Mill Creek and of Fitzhugh Creek are entirely separate and the land upon which the defendants diverted the water from said streams is outside the watershed of both streams. In pursuance of the notice of appropriation *587 the defendant H.G. Payne built a ditch and flume about two miles long to carry the waters of Mill Creek to a point in Fitzhugh Creek about seven miles above their point of diversion, at which defendants also constructed a diverting dam, ditches, and flume leading from Fitzhugh Creek to their land and constructed upon their land certain reservoirs in which the waters diverted from Fitzhugh Creek could be stored when not otherwise used. It was conceded in the trial court that the defendants were entitled to take from Fitzhugh Creek all the waters they deposited in said creek from Mill Creek, less an estimated evaporation of 15 per cent, and the decree established that right by providing that measuring-boxes should be placed at the point of diversion from Fitzhugh Creek and at the point where the waters from Mill Creek were emptied into Fitzhugh Creek and fixed the right of the defendants at the point of diversion as 85 per cent of the amount actually emptied into Fitzhugh Creek from Mill Creek, and no more. Both Fitzhugh and Mill Creeks are fed by melting snows. The watershed of Mill Creek is at a much higher elevation than the watershed of Fitzhugh creek, consequently the snow melts later in the spring in Mill Creek watershed than in Fitzhugh Creek watershed. During the early part of the spring the snows melt with such rapidity in the watershed of Fitzhugh Creek that the stream overflows its banks. The defendants claim that from and after 1886 they continuously diverted 200 inches of water from Fitzhugh Creek at the point of diversion; that this use was continuous during the entire period that such an amount of water was flowing in the stream. They and their successors, some of whom are not parties, consequently claim that the right to take the full 200 inches of water at the point of diversion on Fitzhugh Creek has been established by reason of such adverse use. Of the 200 inches so diverted one-fourth belongs to Carlos Payne and 33 inches has been conveyed to others not parties, and the total amount claimed by H.G. Payne is 117 inches continuous flow and by Gertrude French, 50 inches. The latter right is claimed, under her appropriation made in the year 1912, "during the period of melting snows."
In ordinary seasons the Mill Creek water was turned into Fitzhugh Creek about June 10th, but sometimes the water was turned in as early as May 15th, and it had been turned *588 in as late as July 15th. H.G. Payne testified that his diversion ditch ran full at all times when water was running in Fitzhugh Creek, regardless of whether Mill Creek was diverted thereto. The defendants claim that their title to the waters of Fitzhugh Creek, during the early spring, before the Mill Creek waters were deposited therein, is thus established by adverse use. The only conflict in the evidence is as to the quantity of water actually diverted by the defendants from Fitzhugh Creek and from Mill Creek and as to alleged interruptions of the adverse use of the waters of Fitzhugh Creek by the defendants.
The plaintiffs rely upon the proposition that the use of the defendants was interrupted from time to time and that because of such interruptions there was no period of five years during which the defendants continuously diverted the water claimed by them. The defendants, on the other hand, claim that the interruption of their use was surreptitious and covert; that such breaches as were made in their diverting dam were at once repaired by defendants and the water was again diverted into the defendants' ditch, and that by reason of the surreptitious character of the acts alleged to constitute the interruption, if they occurred as claimed by plaintiffs, such acts were insufficient in law to break the continuity of use necessary to establish defendants' rights by prescription.
The defendants thus claim the right to 117 inches of the waters of Fitzhugh Creek up to the time Mill Creek waters are deposited therein, and particularly during the usual flood period claim such right, plus the 50 inches appropriated by Gertrude French.
[1] We will first consider an erroneous ruling as to the admissibility of certain evidence which will require a reversal. The defendants offered to prove a verbal agreement between John Doten made in 1887, when he owned the property now owned by the plaintiffs, Clark brothers, whereby some arrangement was made as to the use of the waters of Fitzhugh Creek, defendants claiming that the use was continued under said agreement until 1897, when John Doten died, and thereafter until the Clark brothers bought the place in 1914. The offer was objected to by the plaintiffs, the objection was sustained, but subsequently the evidence was *589 admitted and then stricken out. Its general character can be seen from the following excerpt therefrom:
"Q. What was this arrangement, Mr. Payne? A. The arrangement was that I was to run all Fitzhugh Creek water and to take all of the water in the fall of the year except sufficient water to water his stock, and that I was to have my appropriation, excepting in the fall of the year I was to let enough water go down the creek for his stock water.
"Q. You were always to permit sufficient water to run down to his place on Fitzhugh Creek for stock purposes, is that it? A. That was it exactly.
"Q. Was there any arrangement between you and Mr. Doten in regard to the Mill Creek water? A. No, sir; only he told me at that time that he had been to Mill Creek and he was satisfied that we were running the full amount of water, and that he had been up to Mill Creek and had seen the water running. . . .
"Q. Was there any arrangement with you as to not turning the water from Mill Creek until a certain season of the year? A. Yes, sir; part of the agreement was that I was not to turn the Mill Creek water in until the first part, or about the 10th of June, and the reason he stated was because it damaged him by making the water too high, and that it cut out the dam at the house, and that if I put the Mill Creek water in too early it was dangerous to his ranch. It was settled by us on that basis that I was not to put the water in from Mill Creek until between the first and 10th of June, and I was to leave sufficient water in the creek to water his stock and that was all he needed after the first day of June, as he had no use for the water except for stock.
"Q. From that time on did you always turn the Fitzhugh Creek water and the Mill Creek water and handle it in accordance with this arrangement you had with him? A. Yes, sir. John Doten is dead. He died in December, 1897, eleven years after I made my appropriation.
"Q. During those eleven years, Mr. Payne, were you using water continuously from Fitzhugh Creek and Mill Creek under your appropriation and in accordance with your agreement, that is in the manner that you had agreed on with Mr. John Doten? A. Yes, sir. *590
"Q. During that time did he ever make any objection or in any way interrupt your use of the water? A. He did not. . . .
"A. The agreement was, that I was to continue running the water the way I was from Mill Creek, but that I was not to turn the water in before the first or 10th of June, and he had no objection to my running the water of Fitzhugh Creek, and after July or August in the fall of the year I was to take my full amount of water but I was to allow sufficient water to go down the creek to water his stock.
"Q. He agreed that you could turn Mill Creek water into Fitzhugh Creek and then take it out again, and that was all he agreed to, was it not? A. No, sir, it was not.
"Q. What was that agreement then? A. I was to run the Mill Creek water but I was to take my appropriation from Fitzhugh Creek also.
"Q. He agreed that you might take the waste water, take the water of Fitzhugh Creek when he did not need it? A. He agreed that I should take my appropriation. . . .
"Q. After the irrigating season was over he did not object to your taking the Fitzhugh Creek water if you let enough come down the Creek for his stock and irrigating purposes, is that correct? A. He did not object to my taking all my appropriation out of Fitzhugh Creek. If my 200 inches would not dry the creek, he had no objection, but he wanted me to allow enough water to come on down for his stock. . . .
"Q. He never agreed with you that you could take 200 inches of water from Fitzhugh Creek and deprive him of it, did he? A. That is what he agreed to, that if the water was not there, before I turned it in from Mill Creek, I was to have my 200 inches of water, just the same.
"Q. But during the irrigating season you were only to take out from Fitzhugh Creek only what was turned in from Mill Creek, isn't that the case? A. No, sir, I was to have my 200 inches of water and by reason of my putting that Mill Creek water in about the 10th of June he was not damaged in any way.
"Q. He did not object to your taking out 200 inches of water during the irrigating season because you put that much in from Mill Creek and he never lost it, is that the case? A. He told me he was willing for me to run that *591 200 inches, because he had been to Mill Creek and knew I was not damaging him.
"Q. Are you willing to say to the Court in this case that John Doten agreed with you that you could take out 200 inches of water from Fitzhugh Creek any time of the year, regardless of what you put in from Mill Creek? A. Yes, sir, and that is a fact.
"Q. Why did you say a few minutes ago that in the fall of the year you were to have this right? A. That was if the creek was to get down low, it was understood that I was to leave enough water for his stock, because in the irrigating season there was plenty of water."
The evidence should not have been stricken out. The evidence of the agreement was clearly admissible to characterize the subsequent use of the water, and as tending to establish that the use by the defendants thereafter was under a conceded and uninterrupted claim of right and for the purpose of establishing the defendants' claim as against the riparian claims of John Doten and his successors, the Clark brothers. (Bakersfield T. H. Assn. v. Chester,
[3] If the defendants, by reason of such agreement and a continuous adverse use thereunder for five years, had established their right to the use of the waters of Fitzhugh Creek, or to any portion thereof, as against the riparian rights of the Doten property, and had failed to acquire such right as against the Armstrong property, the decree should have adjudicated their respective priorities and rights accordingly. The case was apparently tried on the theory that the riparian rights of the plaintiffs were identical and were both preserved against the claims of the defendants by interruptions of their adverse use by either, while, in fact, the defendants may have secured a prescriptive title to the *592 water of Fitzhugh Creek against one lower riparian owner and not against another.
This ruling on the evidence was prejudicial and necessitates a retrial.
[4] In view of a new trial, we will consider the contentions of the parties as to what constitutes an interruption of an adverse use of water. In the case of Cave v. Crafts,
The case, therefore, is only authority for the proposition that where the claimed use is frequently interrupted and the possession is not peaceable there can be no title by prescription. However, this case is cited in Ball v. Kehl,
But the latter case involved a claim of adverse use where the claimant had used the water "during a part of the period of five years" (p. 614), and consequently is not authority upon the question as to how slight an interruption *593
or what sort of an interruption would prevent the prescriptive right accruing. Both cases are cited in Bree v. Wheeler,
The rule with reference to continuity of use is thus stated in Gould on Waters (3d ed.), section 335, pages 636, 637: "In order to support an easement by prescription, the adverse use must be continuous. . . . An occasional suspension or interruption of the enjoyment will not defeat the right, if it arises from such causes as the dryness of the season; a temporary failure to exercise the right to the extent claimed; or fluctuations in the flow of the stream. So an *594
entry by stealth, or for purposes other than those connected with the right to enter, will not break the continuity of exclusive possession in another. . . ." Section 336: "The diversion of water from a stream by means of a trench is substantially continuous, although exercised only in certain months, or when subject to interruption during a part of each year by the owner of the land through which the trench is dug." The cases cited in support of this latter statement, however, show that the interruption referred to was with the consent of the adverse users. (Bolivar Mfg. Co. v. Neponset Mfg. Co., 16 Pick. (Mass.) 241; Cowell v. Thayer, 5 Met. (Mass.) 257 [38 Am.Dec. 400]; Swan v. Munch,
In Wiel on Water Rights in the Western States (3d ed., vol. 1, sec. 584, p. 630), it is said: "The terms 'exclusive' and 'uninterrupted' probably represent the same thing in this connection; namely, that to the extent of the right claimed, the claimant must not have shared the use with the true owner, nor suffered any act of dominion by him, such as an interruption. The use must be uninterrupted. Mere verbal objection is not an interruption; it must be some act actually causing a stoppage in the adverse use for a reasonable time, though it has been held that use under continual dispute is not adverse."
In Kinney on Water and Water Rights (2d ed., vol. 2, sec. 1052), the right to acquire title by adverse possession by appropriation for definite periods of time is recognized, and it is stated in that regard: "But where the interruption in the continuity of the use is caused by the acts of the party against whom the adverse user in running, and not from the claimant's own free will, no right can be acquired by prescription." In section 1053 the author, in dealing with an interruption, says: "It may be made by the shutting off of the water at the time the claimant needs it," citing in support of the text the following California cases: Bree v. Wheeler,supra; Cave v. Crafts, supra; Last Chance etc. Co. v. Heilbron,
The authorities all seem to agree that the act of the owner, in order to constitute a tolling of the statute, must be open and either upon a claim of right, or so notorious as to constitute such a claim. If secret or surreptitious, it is unavailing. In Ruling Case Law (vol. 1, sec. 39, p. 723) it is said: "The running of the statute of limitations will be tolled by the owner's entry upon the land when accompanied with an explicit declaration of his purpose to re-possess himself thereof, or by such open and notorious acts of dominion as make that purpose manifest. . . . In all cases, however, the intent, as expressed, or evidenced by acts of ownership, is that which governs the effect of the entry. The mere act of going upon the land is not enough. The owner must assert his claim to the land, or perform some act that would reinstate him in possession, before he can regain what he has lost. It is evident, therefore, that an entry by stealth, under circumstances going to show that he claimed no right to enter, or an entry for purposes other than those connected with a right to enter, would not break the continuity of the disseizor's possession." (See 2 Farnham on Water and Water Rights, sec. 539, p. 1750; sec. 561, p. 1807.)
In 2 Corpus Juris, page 96, paragraph 118, it is said: "While the essentials of an entry effective to interrupt an adverse possession will vary according to the premises involved, yet it must not be of a casual or secret character, but must be either known, or made under such circumstances as to enable the party in possession, by the use of reasonable diligence, to ascertain the right and claim of the party making the entry, and thus enable him to resort to legal remedies for its protection. There must be an explicit declaration or an act of notorious dominion by which the claimant challenges the right of the occupant. . . . It may be observed in this connection that there is a close analogy between the acts necessary to interrupt an adverse possession and those necessary to constitute open and notorious possession for the purpose of acquiring title by adverse possession." *596
A single interruption once every five years, under such circumstances as to challenge the right of the adverse claimant, will prevent the acquisition of a title by prescription, for there would then be no period of continuous user for five years. It was so held in the case of TrentonWater Power Co. v. Raff,
The acts of the owner must be open and notorious and under a claim of right. (Creech v. Jones,
The rule in 1 Cyc., pages 1010, 1011, subdivisions b and c, is cited with approval in Thomas v. Spencer, supra, and applied to a clandestine attempt to toll the statute of limitations by the partial damming of a stream by throwing a few sticks and stones therein.
Without further citation of authorities or a critical analysis of those already cited, it is clear that in order to interrupt the running of the statute of limitations, as to flowing water, there must be a resumption of the possession thereof under a claim of right brought home to the adverse claimant either by express notice to that effect or by conduct so notorious and unequivocal as to imply such notice. In other words, the interruption of the possession must rise in dignity and character to that required to initiate an adverse possession. The rule in regard to the latter is stated inThompson v. Pioche,
The testimony offered in this case is to the effect that Armstrong frequently destroyed the diverting dam in Fitzhugh Creek. If the court finds that this was done under a claim of right brought home to the defendants either by express notice to them, or that such destruction resulted in such a resumption of the possession of his riparian rights for such a time as was reasonably calculated to give the defendants, as reasonable men, notice of such claim of right, or of such resumption of possession, then the adverse use of the defendant was interrupted, and if each five-year period of adverse user was so interrupted, that is, if there was no period of five years of continuous adverse user without such interruption, the defendants would not have prescriptive title as against the riparian owner so interrupting the adverse use.
[5] The defendants only claim the waters of Fitzhugh Creek during the early spring and summer before the waters of Mill Creek are turned in, and during the season of flood waters. Consequently, in considering the effect of the interruptions which are relied upon by the plaintiffs to break the continuity of use essential to establish title by prescription, it should also be noted that the use does not have to be of a continuous flow in order to establish a prescriptive right. That is to say, the adverse claimant may establish a right to use water intermittently and for part of the irrigating season only. If that right is insisted upon and maintained without interruption, a corresponding prescriptive right arises. This principle is thoroughly established in this state. The latest expression of this court upon that subject is NorthernCalifornia Power Co. Cons. v. Flood,
In one of our earlier cases (American Co. v. Bradford,
In Davis v. Gale,
The decision in the case of Santa Paula Water Works v.Peralta,
In Smith v. O'Hara,
It is clear, then, that right may be gained to use water for certain periods of time as well as for certain amounts measured by volume or by flow, and that the measure of the prescriptive title is the use, under a claim of right adverse to all others for the period of five years. Consequently an interruption during the time that the Mill Creek waters were flowing in the Fitzhugh Creek was not necessarily an interruption of the adverse right asserted by defendants to the waters of Fitzhugh Creek.
As to the flood waters which continued to flow within the banks of Fitzhugh Creek, the plaintiffs, as riparian proprietors, *601
had a right to prevent an obstruction to such flow. The defendants, in order to divest this right of plaintiffs to such flood waters, must rely on grant from plaintiffs, or prescription against them, precisely the same as in the case of the ordinary flow of the stream. With respect to the annually recurring flood waters of said creek which do not remain within the banks of the channel which confines the stream in ordinary stages of flow, but which overflow and spread out beyond such banks and over the lands of the plaintiffs, it is conceded that the only benefit which plaintiffs do or can derive from them arises from the fact that it deposits silt which enriches the land. Whether or not the water so escaping from the stream remains a part thereof, subject to the riparian right, or ceases to be subject thereto and becomes the "vagrant water" referred to in Miller Lux v. Medera Canal Co., 155 Cal., on pages 64, 76, and 77 [22 L.R.A. (N.S.) 391,
As to defendant Payne's claim to flood waters, it is sufficient to say that he made no separate or special claim thereto as such, and his rights therein depend upon his ability to establish adverse possession for five years of the quantity of water he claims. Gertrude French claims a portion of the flood waters only and is entitled to such proportion thereof as has been actually diverted by her and put to beneficial use and used adversely during the period of flood waters continuously and without interruption for a period of five years.
It appears from the record that the testimony was very conflicting as to the amount of water used by the defendants and running in their ditches. Some finding of the fact should be made on the next trial.
Judgment reversed.
Shaw, C. J., Sloane, J., Shurtleff, J., Lawlor, J., and Lennon, J., concurred. *602