245 F. 449 | 9th Cir. | 1917
Oro Electric Company, plaintiff herein, is the owner of a certain ditch in Butte county, known as the “Nickerson Ditch.” This ditch crosses the land of defendant, Bader Gold Mining Company, some distance below its intake which is on
That plaintiff has an easement right for the carriage of water through the Nickerson ditch across the lands of defendant is not denied, nor is its ownership of the ditch seriously questioned; but defendant does deny that such ownership confers the right to carry a greater amount of water than was carried by the ditch prior to 1906, at which time defendant claims the ditch was enlarged by plaintiff without right to do so.
The answer admits that defendant asserts a claim to a portion of the ditch, and has taken water therefrom, and will continue to do so. As a second defense the answer avers that, when the Nickerson ditch was enlarged in 1906,. plaintiff’s predecessors in interest took, by means of the enlarged ditch, from Little Butte creek 500 inches of water, which defendant had theretofore appropriated at a point some 2 miles below the intake of the Nickerson ditch, thus depriving defendant of the use of said 500 inches of water owned by it, and that immediately thereupon the defendant recaptured said water as it flowed through the Nickerson ditch, by opening a gateway therein and letting run therefrom water only sufficient for its use, not to exceed 500 inches; this being, according to defendant’s contention, the trespass complained of.
The answer as a third defense alleges that plaintiff is in possession of the Nickerson ditch and is the owner of an easement to maintain the same across the lands of defendant and adjoining property owners, but owns no land across which the ditch runs, and that defendant has at no time used the ditch for a purpose inconsistent with the enjoyment of the easement possessed by plaintiff. For a fourth defense the answer avers that plaintiff’s cause of action is barred by certain California Code provisions. A fifth defense avers that plaintiff has been guilty of laches in not bringing its action within a reasonable time. A sixth defense asserts defendant’s right to use the
A further and separate answer by way of counterclaim asserts defendant’s right by prescription to use the Nickerson ditch for the carriage of water from its intake to the point where it has been taking water therefrom, avers that plaintiff claims some interest adverse to such right, and prays that defendant’s asserted right be declared valid, and that plaintiff be enjoined from making any claim upon such use of the ditch by defendant.
From a decree awarding plaintiff the relief prayed for, the defendant appeals.
The trial court finds against defendant upon its general denials, and upon its fourth, fifth, and sixth defenses, and upon the separate answer and counterclaim. These findings, although vigorously assailed by defendant, are amply supported by competent evidence, and on well-settled principles cannot be disturbed. The court, however, deeming them immaterial, made no findings on the matters set up in the second and third defenses, which may be briefly characterized as the defense of recapture of water, and the defense of the use of the ditch by defendant for a purpose not inconsistent with the enjoyment of the easement possessed by plaintiff.
In the second place the recaption must be such a retaking as transfers the possession at once to the owner, and not a continued action extending over months, and perhaps years, and inviting at every moment a conflict. It must be borne in mind that it is not sought by the present action to recover the water already “recaptured” and reduced to possession by defendant in the past, but to prevent the constant and continued “recapture” which is threatened in the future.
“If the cross-complaint can be held to state a cause of action which might be the basis of an independent suit, it does not state a cause of action which is the proper subject of cross-complaint in this case. * * * No right of water is asserted, nor was it necessary for plaintiffs in order to make a case to show any. The court so held in giving,them the relief demanded, while finding that they had no right to the water in the creek. The trespass charged did not consist in destroying or injuring the dam or other means by which the water was' diverted from the creek, nor in diverting" the water in the creek to other uses, but was an injury to the embankments of the ditch, and a taking of the water from the ditch itself. Had the alleged trespass consisted in an attempt to prevent the flow into the ditch from the stream possibly the assertion of a right to have the water flow would be considered, but no such defense could be made here: The cause of action set up by plaintiffs and the rights asserted by defendant have no reference to each other. True, there was water in the ditch, and the evidence shows that it came from Panoche creek. But the fact that defendant had a superior right*453 to the water flowing in the creek would not justify him in destroying the ditch, or in taking what water he needed from the ditch at points were it passed over or near his land.”
Defendant urges that the portion of the decision above quoted is mere dictum and entitled to little consideration. But such is not the case. It was one of the reasons upon which the court based its judgment, is no more to be rejected than any other one, and in any event is a clear and correct statement of the law. However vigorously urged and skillfully presented, the defense of “recapture” is unsound, and was properly rejected by the trial court.
Nothing in the case of Hoyt v. Hart, 149 Cal. 722, 87 Pac. 569, relied upon by defendant, supports such a substitution. Even if the court had found that defendant had the right to use, jointly with plaintiff, that portion of the ditch which crosses its lands for the carriage of water to which it was entitled, such finding would not justify the acts complained of here. If plaintiff has taken from Little Butte creek water to the flow of which to its own land defendant is entitled, or if plaintiff, by enlarging the ditch, has imposed a greater burden on the servient estate than it should rightfully bear, defendant is not now, nor has it ever been, without remedy. But
These considerations dispose of defendant’s contention that the master erred in holding that a prima facie case was established in favor of plaintiff when, from the pleadings and from the admissions of defendant, it appeared that plaintiff was the owner of the ditch in question and that defendant was taking the water therefrom, and would continue to do so unless restrained by the court. The same is true as to the contention that die master erred in sustaining objections to certain questions propounded to the witness McCoy. The testimony sought to be elicited by the questions had to do with the alleged enlargement of the ditch m 1906, and was relevant only to the defenses held to be unsound. As to the alleged error in sustaining objections to. the testimony of the witness Newman, it is sufficient to say that such testimony night well have been rejected because of the time at which it was offered, and in any event, even if admitted and given full credit, it could not have affected the finding of the court that defendant’s taking of water from the ditch was not open, uninterrupted, and of such a character as to raise a foundation for prescription.
Though there are 55 assignments of error, there is no point made by any of them that is not disposed of by what has been said above.
The decree of the District Court is affirmed.
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