86 P. 838 | Cal. Ct. App. | 1906
Action for perpetual injunction restraining defendant from constructing or maintaining a dam in and across a certain channel. Plaintiff had judgment from which and from the order denying his motion for a new trial, defendant appeals. *573
The court, among others, made the following findings:
Appellant contends that the evidence fails to show the existence of a natural watercourse. The court did not in terms find the existence of a natural watercourse, but did find that the channel involved was a watercourse. The pleadings were framed and the trial seems to have proceeded on the theory that the channel referred to is a natural watercourse. The distinction is not material, for the definition of a watercourse, such as is here in question, calls for such a drainway or runoff channel as is the result of natural causes. There was much testimony tending to show that the channel in question has been known in past years as Burris slough and that it formed a natural drainage from Kings river to Cross creek. Witness McQuiddy testified: "I have known that slough for more than twenty-eight years; the head of the slough is on the south bank of Kings river; its course for a distance is almost south and then it bears off to the southeast for a mile or so, then runs pretty nearly due south to Cross creek. It (Cross creek) is a natural stream that lays a few miles south of Kings river; Kings river is also a natural stream. This slough received its waters from Kings river and emptied into Cross creek. When I first knew this slough it was a well-defined channel." It appeared from the testimony of this *575
and other witnesses that in its course the channel spread out in places and was quite shallow, and again would narrow down to a few feet with well-defined banks and so continue on its course to Cross creek, varying in width, but always confining the water in a more or less plainly defined channel to Cross creek, into which it discharged the flood waters coming from Kings river and the rainfall and seepage water which drained into this slough. Many years ago a levee was constructed at the head of the slough on Kings river, which practically shut off the flow into the slough from that river, except in seasons of extreme flood waters, but the slough still remained as a natural drainage for the rainfall and for water seeping or percolating from the bordering land which was being irrigated by artificial ditches. The general character and the natural uses of the slough for drainage purposes were not changed by the levee at its head. The evidence showed that the ditch cut by plaintiff to shorten the channel at the point above defendant's land had for its object the hastening of the flow of water at that particular point, but did not injuriously affect defendant's land. It was stated inSanguinetti v. Pock,
It is not necessary to consider whether or not the finding that the ditch cut by plaintiff has been in adverse use for more than the statutory period is sustained by the evidence. The *576 findings as to the watercourse and its natural adaptation for drainage of the riparian land are sufficient to support the judgment.
Appellant calls attention to the recent case ofWood v. Moulton,
The judgment and order are affirmed.
Buckles, J., and McLaughlin, J., concurred.