171 P. 417 | Cal. | 1918
Lead Opinion
Plaintiffs appeal from parts of judgments identical in three cases involving the flow of Bear River and its tributary, Wolf Creek, to the lands of plaintiffs in Yuba and Placer counties. The three appeals are by stipulation to be governed by the decision based upon the transcript in the case entitled "E. Clemens Horst Company v. New Blue Point Mining Company."
E. Clemens Horst Company (hereinafter to be known as "plaintiff" or "appellant") has owned for more than a quarter of a century land riparian to Bear River. The water flowing to said land comes partly from a tributary of Bear *633 River known as Wolf Creek, which has its confluence with the river above plaintiff's land. Upon Wolf Creek the predecessors of defendants maintained a dam. This dam was completed in 1862 and was constructed at large cost, and has been maintained by defendants or their predecessors in interest ever since. Heading at this dam was a ditch sometimes known as the "Campbell Ditch." It was twenty-eight miles long. Two miles from its head this ditch crossed a tributary of Wolf Creek known as French Ravine, and no water carried beyond French Ravine in said ditch ever did, now does, or can return to Wolf Creek or Bear River above the land of plaintiff.
Beginning in 1862 two thousand inches of water was carried by said ditch in the winter-time each year and not returned to either the creek or the river, being used in gravel mines at Smartsville. A small quantity has been and still is distributed in such manner that a portion of it has been returned to the stream above the land of plaintiff, but as there is no controversy over this water it will not be considered in this opinion. Winter diversions through the ditch continued until 1883, when the mining at Smartsville outside of the watershed of Bear River and Wolf Creek was stopped by injunction. Between 1883 and 1910 no water in winter was carried by the ditch outside of the said watershed.
In the irrigation season, however, from 1862 to 1901, water for irrigating purposes was distributed along the course of the ditch in amounts varying from one hundred to eight hundred inches of water, none of which was returned at or above plaintiff's lands. All the other water diverted by the ditch was released before reaching French Ravine. In 1901 the flume crossing French Ravine broke down, and from that year until 1910 no water was conducted beyond that place. At all times between 1901 and 1910 all water taken from Wolf Creek by the dam and ditch was returned to the stream above plaintiff's lands and flowed on plaintiff's lands, where it was used by plaintiff.
Upon this history of the use of the water it was held that defendants, between the years 1901 and 1910, had forfeited all right to take any of the natural flow of Wolf Creek to any place outside of the watershed of that stream or that of Bear River, and had never recovered said right either by prescription or otherwise. In regard to all of the natural flow *634 of these streams, plaintiff as a riparian owner was found to have rights prior and superior to any which defendants might assert.
In 1909 defendants reopened Campbell Ditch, rebuilt the flume across French Ravine, and began to distribute at places beyond French Ravine and outside of the watershed of Wolf Creek and that of Bear River water varying in amount from five hundred to two thousand five hundred inches.
It was found by the court that Wolf Creek receives, and for more than half a century has received, in addition to its natural flow, water coming from sources without its watershed and known as "foreign water." This "foreign water" is made up of sewage from the city of Grass Valley and water discharged from mines and mills, the city, mines, and mills receiving their supply from a canal which leads from Yuba River. The canal is owned by persons not in privity with these litigants, or any of them, and not parties to this controversy. All of the discharges of "foreign water" enter Wolf Creek above the Campbell dam and commingle with the other waters of said stream. Said "foreign water" is never less than five hundred inches nor more than one thousand four hundred inches. The natural flow of Wolf Creek at the lowest stage is found to be always at least 1,191 inches.
It was further found by the court that plaintiff has a paramount right to the natural flow to its lands of the water in Wolf Creek and Bear River, but that defendants have a right superior to plaintiff to all of the "foreign water" at all times for use at any place within or without the watershed of Wolf Creek or Bear River.
The essential conclusions of law were that plaintiff is entitled to all of the natural flow to its lands; that defendants, as against plaintiff, have a right to use the "foreign water" not exceeding one thousand four hundred inches; and that plaintiff may have an injunction restraining defendants from diverting any save the "foreign water" from Wolf Creek. By the judgment which follows the conclusions of law, the title of plaintiff to the natural flow is quieted.
The principal question involved in this appeal is the following: Where the flow of a natural stream is augmented by artificial means, that is, by waters which, without the intervention of human agency, would never reach the stream, does this artificial flow inure to the benefit of riparian owners or *635 is it merely in the nature of abandoned personalty which may be appropriated by the first person who can take it from the stream?
Appellant agrees with respondents that the "foreign water" is an increment of Wolf Creek abandoned by those who produce it. While the right of the producers at any time to forsake the practice of putting water into Wolf Creek is conceded, the right of respondents, in the absence of any privity with said producers, to appropriate this surplus flow is denied. Appellant calls the court's attention to the case ofArkwright v. Gell, 5 Mees. W. 203-226. In that case mine owners had drained their workings by a tunnel from which water was discharged in such a way that it flowed to plaintiffs and was used by them to operate mills. For the purpose of securing better drainage the owners of the mine dug a deeper tunnel, which caused the other to run dry. In this they were upheld on the ground that those creating the supply may discontinue it. In principle that case seems to fit the one point upon which appellant and respondents agree, namely, the right of the producer of the artificial flow to cease furnishing it, but appellant lays great stress upon the comment on the case in Washburn on Easements, fourth edition, at page 420, which is as follows:
"It will be remarked, as an important circumstance in this case, that the one who dug the second sough and caused the diversion was interested in the mines thereby to be drained. Had it been otherwise, had he been a stranger, or merely the owner of the land lying between the outlet of the first sough and the place where the water entered into the natural stream, he would have had no right to divert the current issuing from the mine, so as to deprive the plaintiff of the use of the water flowing in the same, after having enjoyed it so long." It is contended that as among all the rest of the world except the producer, the mingled stream of natural and artificially introduced water follows the usual law of watercourses, and that it is immaterial as between two claimants how the water got into the bed of the stream. In this behalf a number of authorities are cited, including Wood v. Waud, 3 Ex. 748;Druley v. Adam,
If, then, the appellant can obtain no casement or right by adverse possession or user against the people at Grass Valley who add to the corpus of the stream, how, ask respondents, can plaintiff maintain the present action without first establishing a right to the use of this water? We can find no satisfactory answer to this question that will fit with appellant's contentions. Respondents invoke the rule of property that plaintiff must rely upon the strength of its own title and not upon the weakness of that of its adversaries. (Citing Little Sespe Consolidated Oil Co. v. Bacigalupi,
A riparian owner has a right to the usufruct of the natural water of the stream, but an appropriator of the waters artificially added is a taker of the corpus of that which exists in the stream only by virtue of its abandonment. So jealous have the courts of this state been for economy in the use of water and the fair apportionment of the precious fluid for beneficial purposes, that they have refused to restrain the diversion of water by a nonriparian appropriator, at the suit of a lower riparian owner, when the amount diverted would not be used by the latter but would greatly benefit the person diverting it. (San Joaquin Kings River Canal Irr. Co. v.Fresno Flume Irr. Co.,
In Gallatin v. Corning Irr. Co.,
"These decisions in effect establish the just rule that flood waters which are of no substantial benefit to the riparian owner or to his land, and are not used by him, may be taken at will by any person who can lawfully gain access to the stream, and conducted to lands not riparian, and even beyond the watershed, without the consent of the riparian owner and without compensation to him. They are not a part of the flow of the stream which constitutes 'parcel' of his land, within the meaning of the law of riparian rights."
In Cohen v. La Canada Land Water Co.,
So in the present case it may be said that as the surplus waters would not in the course of nature reach appellant's land, that corporation may not complain of being deprived thereof either by the producers of the excess, by their assignees, or by a stranger to their title who appropriated the abandoned excess for proper purposes.
Respondents cite Dannenbrink v. Burger,
We are convinced that plaintiff and respondents were upon an equal footing with reference to the surplus water, and that the ones who first secured it may not be deprived of the right to the use of it, even outside of the watershed of Wolf Creek, by the person or corporation claiming as a lower riparian proprietor on Bear River. This disposes of the principal question involved herein, and our determination of this matter is not altered by the opinion in Schwann v. Cotton, [1916] 2 Ch. 459, dealing with a controversy between riparian proprietors in a jurisdiction in which our law of appropriation of waters has no application. The case of Davis v. Gale,
Appellant attacks the judgment upon the ground that it is not definite. That the amount of "foreign water" varies greatly at different periods during the year is found. Its maximum (one thousand four hundred inches) and its minimum (five hundred inches) are fixed by the findings, but it is argued that as the amount of the flow of the added water is never constant, and never will be, it is impossible to tell when respondents are going beyond the appropriation of the added water and taking from the natural flow. The effect of the judgment, says appellant, is to restrict it over the whole year to the minimum flow of natural water found to be in the stream at the end of the season. It is argued that the judgment is just as uncertain as that found erroneous for uncertainty in Watson v. Lawson,
Certain of the respondents question the jurisdiction of the court to try this case and contend that they should have been awarded a judgment of dismissal under section 5 of article VI of the constitution of California. This, they say, is an action to quiet title to the waters of Bear River and its tributaries, *641
including Wolf Creek, and as the latter stream is entirely within the county of Nevada, they assert that the superior court in and for the said county alone had jurisdiction to entertain such a suit. The court found that plaintiff's right sought to be quieted was "a part and parcel of its Yuba County lands." The action was properly commenced and tried in Yuba County. (Miller Lux v. Madera Canal Irr. Co.,
It follows that respondents were not entitled to a judgment of dismissal.
The parts of the judgments from which appeals are taken are affirmed.
Shaw, J., Victor E. Shaw, J., pro tem., Sloss, J., Wilbur, J., and Angellotti, C. J., concurred.
In denying a rehearing the court in Bank filed the following opinion on March 29, 1918:
Addendum
The petition for rehearing is denied.
The court does not construe the opinion herein as deciding the question as to what rights may be acquired in so-called "foreign waters" as between appropriators, or by prescription. The record in these cases presents a controversy between the plaintiffs claiming the waters in question solely by virtue of their lower riparian ownership of the banks of Bear River, of which Wolf Creek is a tributary, and the defendants claiming the right to divert the foreign waters of Wolf Creek by virtue of their appropriation and application of the same to beneficial uses. *642