134 P. 717 | Cal. Ct. App. | 1913
The action was one by plaintiff to restrain the defendants from obstructing or continuing to obstruct a certain creek, and from diverting water therefrom, and for damages. The facts are these: Plaintiff is the owner of a tract of land in San Luis Obispo County through which Stenner Creek runs. This Stenner Creek is a stream formed from various tributaries, the two principal ones arising at certain springs, one thereof from Serrano spring and the other from Dyer spring. Dyer spring is situate upon land owned by the defendant corporation, and from it a stream flows through defendant's lands and those of other proprietors until its junction with the waters flowing from Serrano spring, from which point the stream is known as Stenner Creek. Plaintiff's land lies below the junction and below lands belonging to one Herrera. The defendant corporation, in the year 1894, built a dam and commenced the *375 diversion of water from the tributary flowing from Serrano spring, and continued the use of this water for purposes other than that of irrigation from that date until 1903, at which time, having acquired the lands upon which Dyer spring is situated, it abandoned the rights acquired below Serrano spring and commenced the diversion of water arising from Dyer spring for use other than for irrigation. This last-mentioned flow of water, like that from Serrano spring, if unobstructed, would flow down and become part of the waters of Stenner Creek. Plaintiff as a riparian owner was entitled to a reasonable use of the waters of this last-named creek. In her complaint she alleged that the water diverted by defendants varied daily, but that it had always amounted to between three hundred thousand and four hundred thousand gallons each day; that the result of such diversion by defendants has been to deprive her land of waters necessary for domestic use and for irrigation. Defendant corporation in its answer admitted its diversion and use of water, as alleged, but denied that it used at any time in excess of eight thousand five hundred gallons a day. In another portion of the answer it is stated that the extent of the use of the water was at least nine thousand gallons a day. The trial court found that for more than five years previous to the commencement of the action — that is to say, from March, 1894, to November 15, 1903 — the defendant corporation continuously, uninterruptedly, and adversely appropriated, diverted, and used the waters of said Serrano spring, each and every day during said period, to the extent of twenty-eight thousand gallons; that in 1903 the defendant released all the waters of said Serrano spring before used by it, and ever since said date last mentioned all the waters of Serrano spring have been permitted to flow down the creek. By finding 10 it is found that on November 15, 1903, the defendant by dams diverted the water from the stream flowing from Dyer spring and converted, carried away, and consumed a quantity of water less than twenty-eight thousand gallons per day, in addition to some other water which the court finds it had no right to use. In another finding the court finds that from November, 1903, the defendant has appropriated, used, and diverted from said springs continuously, uninterruptedly, and adversely the waters flowing from said Dyer spring to the extent specified *376 in finding 10, to wit, twenty-eight thousand gallons every day. The court by its judgment enjoined the defendant from taking from said stream flowing from Dyer spring any water in excess of twenty-eight thousand gallons each day, and gave judgment for $233.33 damages on account of other water taken and used, without right, to plaintiff's injury. From this judgment, and from an order denying a new trial, plaintiff appeals upon a statement.
Appellant's first contention is that the answer and the findings do not allege or find that the use of the water by defendant had been adverse to plaintiff, and that construing the findings to the effect that the use was adverse to plaintiff, there is nothing in the evidence tending to show that plaintiff had knowledge, or means of knowledge, of such diversion. We are of the opinion that the allegation in the answer of the adverse use is the equivalent of and tantamount to a statement of adverse use as to plaintiff. The acts alleged by defendant, and by the court found, show an open and notorious use and exercise of a right which plaintiff claimed, and plaintiff making no objection thereto, having the knowledge or means of knowledge thereof, the use may be said to be adverse. "After showing the continuous occupancy and use of the water as though he were the owner, for more than five years, he establishes a prima facie case. It then devolves upon defendant to show that the use was permissive or without the knowledge of said defendant." (Gurnsey v. Antelope Creek etc. Water Co.,
It is contended further by appellant that the change of the point of diversion in 1903 from the tributary fed by Serrano spring to the tributary fed by Dyer spring was unauthorized under section 1412 of the Civil Code. This contention is based upon the language used by the supreme court in the case ofHargrave v. Cook,
Judgment and order reversed, and cause remanded for a new trial.
James, J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 18, 1913, *379