87 Cal. 296 | Cal. | 1890
This action was brought by the respondent against the appellant to enjoin the latter from diverting water from a certain natural stream in the county of Santa Barbara. The defendant owned two tracts of land on the stream. Between'these two tracts the plaintiff was in possession of a tract of land, claiming the same as a pre-emptor from the government, and for which he held a receiver’s receipt.
The court below found for the plaintiff, and enjoined the defendant from diverting and using the water, as prayed for in the complaint. No motion for a new trial was made, but the bill of exceptions was filed -within sixty days, and specifications are made and errors of law assigned therein.
Counsel for appellant makes numerous points in his brief, which we will attempt to notice in their order.
' The first point made is, that the court below erred in overruling the defendant’s demurrer to the amended complaint. The objection made to the complaint is, that it does not show that the plaintiff was, at the time the action was brought, or at the time the water was diverted from the stream, the owner of the land, or that the land
These averments are not sufficient to show a compliance with the law relating to pre-emption settlements upon and purchase of government lands. (Rev. Stats., secs. 2259, 2264; Quinn v. Kenyon, 38 Cal. 501; Page v. Hobbs, 27 Cal. 486.)
But it is contended by the respondent that no allegation of facts necessary to show that the lands were subject to pre-emption, or that the respondent was a qualified pre-emptor, and took the steps necessary to acquire the title from the government, is necessary in a case of this kind; that it was enough to allege that he was the holder of the receiver’s receipt and in possession therer under. In this contention we must hold with the respondent. This is not a case involving title to the land in which each of the parties is claiming through the government. The appellant makes no claim of title to the land, nor is it shown to be in privity with the para
A demurrer was sustained to the second defense set up in the defendant’s answer, and this is claimed to have been arrerror. It is alleged, in this defense, that one Bush entered upon the lands claimed by the plaintiff in this action, as a pre-emptor, and filed his declaratory statement in the land-office, and that while so in possession of the land, said Bush granted to one Underhill the right to construct and maintain a pipe line over said lands, together with the right to use and divert the waters flowing in said creek; that Underhill conveyed this right to the defendant; that defendant had entered into the occupation of said lauds for its said business of water supply; had laid its pipes, at great cost and expense, in such manner as that plaintiff must have had notice of the fact; that plaintiff made his so-called settlement with full notice of defendant’s claims, rights, appropriations, and expenditures; that Bush relinquished to the United States his claim as a pre-emptor by filing the declaration to that effect, and the lands thereby reverted to the United States,
There was no error in refusing to strike out the amended complaint on the defendant’s motion.
The appellant contends that the court below erred in certain rulings upon the evidence. The ground of this contention seems to be that the entry of the respondent upon the land as a pre-emptioner was fraudulent and invalid, because it appeared that he had bought the claim of Bush to pre-empt the land, and Bush had abandoned his claim, and the plaintiff had thereupon entered thereon. But the answer to this is, that the plaintiff is not claiming under the entry of Bush, but under his own entry, after that of Bush had been abandoned. The fact that Bush had been induced to abandon his claim by the payment of money did not prevent the plaintiff from entering upon and acquiring title to the land. Bush having abandoned his claim in the manner provided by law, the land was open to entry by the plaintiff or any one else, and the entry was not fraudulent or illegal because of Bush’s prior entry and abandonment of his claim.
The same contention is made the ground of objection to the introduction of the receiver’s receipt, and for the same reasons the objection was properly overruled.
It is insisted by the appellant that the findings of the court do not support the judgment, and are not sustained by the evidence. Both of the parties to this action were riparian owners on the stream the waters of which are in controversy, and each also claimed to be prior appropriators of such waters, or a part of them. The court below found that the plaintiff was the owner of the land claimed by him; that the same was public land; that he settled upon the same as a pre-emptor, filed his declaratory statement as such, made proof and payment on
As to the defendant’s right to divert and use the water of the stream, the court found as follows:—
“That on the thirteenth day of August, 1887, A. S. Cooper posted a written notice at a point on said creek above plaintiff’s land, claiming the water flowing in said creek to the extent of fifteen inches, measured under a four-inch pressure, which notice' was. within ten days duly recorded in the office of the recorder of the county of Santa Barbara; that after the posting and recording of said notice, said Cooper conveyed all of his rights and*303 interests in the waters of said creek to defendant. But said Cooper did not actually divert or use said water for any purpose, and his appropriation was made for the purpose of speculation only, and he did not within sixty days after the posting of his notice commence the excavation or construction of any works in which he intended to divert the water; the defendant, after Cooper’s sale to it, which was more than sixty days after he posted his notice, did commence the excavation and construction of works in which he intended to divert the water; that the plaintiff did not post any notice of his intention to appropriate any of the waters of said creek, but he had actually appropriated and diverted the water as set forth in the third findipg, and was using it for domestic purposes and irrigation at and before the time when said Cooper posted his appropriation notice.
“ That on the thirteenth day of March, 1885, Alexander B. Todd posted a written notice at a point on said creek above plaintiff’s land, claiming the water flowing in said creek to the extent of twelve inches measured under a four-inch pressure, which notice was duly recorded; and he stated in said notice that he intended to divert said water by means of one ten and one half inch iron pipe, and a one and one half inch iron pipe, and said Todd did divert water from said creek through a one and one half inch iron pipe, which pipe is the one mentioned in the second finding; that the defendant is the successor in interest of said Todd, but no actual appropriation or diversion of any water has been made under the said Todd notice except as to the said one and one half inch pipe, and no steps have been taken to divert any water under said notice, other than as to said pipe, and neither said Todd nor his successors in interest began or prosecuted with diligence the excavation or construction of the works in which it was intended to divert any water from said creek under said notice, except as to said one and one half inch pipe; and the plaintiff had actually*304 appropriated, diverted, and used the waters of the Loma Abaja Creek, as set forth in the third finding, before the defendant, or its grantors or predecessors in interest, had commenced the excavation or construction of any works in which it was intended to divert any water from said creek, other than through said one and one half inch pipe.
“ That the defendant is the owner of sections 5 and 6, township 4 north, range 27 west, San Bernardino meridian, but the said land is below the land of plaintiff’s land, and said Loma Abaja Greek flows through plaintiff’s land before reaching the said land of defendant.”
As a conclusion of law from these findings the court found: “That the plaintiff is entitled to have the said creek flow in its natural channel down to his said land, less the portion thereof diverted by means of a one and one half inch iron pipe, and that he is entitled to the relief prayed for in his complaint, and it is ordered that judgment be entered accordingly.”
The court thereupon entered judgment enjoining the defendant from diverting any of the waters of the stream except that which might be diverted by means of the one and one half inch pipe.
These findings were clearly sufficient to sustain the judgment, and after a careful examination of the record, we are satisfied that the findings are supported by the evidence.
It is earnestly contended by the counsel for the appellant that the evidence fails to show that at the time the amended complaint was filed the defendant was threatening to divert the waters of the stream, but that, on the contrary, the diversion by the six-inch pipe was complete, and for that reason injunction could not properly issue. But conceding that the six-inch pipe had been put in and the diversion of the water had taken place at the time that the amended complaint was filed, or at the time the action was commenced, which was the ma
It is further insisted that the evidence fails to show that the plaintiff had been or would be damaged by the diversion of the water. We think otherwise; but if it appeared that the diversion was wrongful, it was not necessary for the plaintiff to prove damages, to entitle him to an injunction. (Moore v. Clear Lake Water Works, 68 Cal. 150.)
Again, it is claimed that the plaintiff conceded the defendant’s prior right to divert the waters of the stream to the capacity of its one and one half inch pipe, but averred that such pipe was not sufficient to divert all of the waters of the stream; that this averment was denied and was not supported by the evidence. We think the evidence does show that the one and one half inch pipe would not carry all of the waters of the stream. If it would, it was at least a little remarkable that the defendant should go to the expense of putting in another and much larger pipe to divert water that was not there; and besides, this claim is hardly consistent with the contention, above noticed, that the defendant was at the time the amended complaint was filed actually carrying off water with this six-inch pipe. But this, it seems to us, is not very material. The defendant was not enjoined from diverting the wafer to the full capacity of the one and one half inch pipe. If this left no other water to divert, the defendant was not injured by the injunction, and has no reason to complain, except it might be as to the costs.
It is contended further that the laches and acquiescence of the plaintiff in allowing the defendant to pro
It is further insisted that the rights of the appellant could not be forfeited by a proceeding of this kind. But this is not an attempt to forfeit any right the appellant had, but to show that it never had any rights.
There are other objections to the findings, that need not be particularly noticed.
There is no error in the record.
Judgment affirmed.
De Haven, J., and Paterson, J., concurred.
Hearing in Bank denied.