91 Cal. 146 | Cal. | 1891
Action for damages resulting from the alleged diversion of water by defendant from Montecito Creek, in the county of Santa Barbara, and for a perpetual injunction against such diversion in the future. Both parties claim to be riparian proprietors upon both sides of the creek, the defendant's land being about one mile above that of the plaintiff.
The complaint charges that in January, 1882, by means of a dam across a main branch of the creek (the Cold Spring branch), and certain flumes and ditches erected and maintained by the defendant, he “prevented a portion of the waters naturally flowing in said creek from flowing down to and reaching plaintiff's land and premises; that defendant wrongfully and unlawfully has .continuously since said time appropriated
The amended answer of the defendant, on which the case was tried, denies that the waters of said creek naturally flow through plaintiff’s land later than the month of June, except in extraordinarily wet seasons, and specifically denies all the wrongful acts charged in the complaint.
The answer alleges the defendant’s riparian ownership of land as above stated, and that on November 19, 1881, the defendant leased to Ah Young, a Chinaman, a part of his riparian land on the west side of the creek, and sets out the "lease as follows: —
“ Agreement in consideration of the sum of one hundred dollars ($100) per annum, to be paid semi-annually in advance. I agree to lease to Ah Young my field of eight (8) acres, more or less, lying on the west side of Cold Spring Creek, formerly known as the Sanchez land, for the term of five (5) years from date of this agreement; I furthermore agree to build a six-inch flume to carry water from the creek to the land, he, Ah Young,*149 agreeing to keep said flume and the fence now about the land in good repair as they are at present.
“O. A. Stafford.
[Chinese mark] “Ah Young-.
“Montecito, S. B. Co., Cal., November 9, 1881.”
The answer further alleges that defendant did not agree to furnish the lessee any particular quantity of water, or any water, except such as the lessee was entitled to by the terms of the lease, viz., so much as was appurtenant to the land leased by reason of its being riparian to the creek; that Ah Young took possession of the leased premises on November 9, 1881, and he and his assigns continued to occupy the premises under the lease until November 9, 1886.
It is also alleged in the answer “ that no notice was given to defendant before the commencement of this action to abate any dam in said creek, or that the waters of said creek which flowed into said flume were being, or had been, wasted or misapplied.”
As to the alleged riparian ownership of defendant, and the lease and possession of the lessee under it, the court found the answer to be true. As to the alleged want of notice to defendant there is no finding. As to damages, the plaintiff withdrew all claim except for nominal damages, and the court found only nominal damages. But upon all other material issues the court found for the plaintiff, and gave judgment against defendant for nominal damages, and costs assessed at $263.60, and perpetually enjoined and commanded him, substantially, as follows:—■
1. From wasting, or permitting to be wasted, any portion of the waters of said creek or the branches thereof;
2. From diverting or using, or permitting to be diverted or used, any of said waters upon any other land than the riparian land of the defendant;
3. From diverting, or permitting to be diverted, for the purposes of irrigation, all the waters of said creek or
4. In case the defendant -should divert and use a portion of the waters of said stream for the purpose of irrigating his riparian land, he is commanded, by “ substantial and proper artificial means and methods,” to conduct back to the channel of the creek, above the lands of plaintiff, all surplus water not necessary for such irrigation and not being used therefor, so that the same may be restored to the natural channel above the lands of plaintiff without waste or unnecessary diminution.
. 5. It is adjudged that the use, by the defendant, of the waters of said stream for the purpose of irrigation is subordinate to the right of the plaintiff to use the same for domestic and household purposes and the watering of stock.
The case was here on a former appeal (77 CaL 66), but the questions now presented are different from those decided on the former appeal.
The defendant appeals from the judgment, and also from an order denying his motion for a new trial.
1. The appellant contends that the evidence does not justify the finding that the defendant by any means diverted, misapplied, or wasted any water from the Cold Spring branch of the creek; or that he caused, authorized, or promoted any such misapplication- or waste by others.
The evidence tends to prove no other wrongful or excessive diversion than. that from the Cold Spring branch through the flume to the garden leased to Ah Young; and the only evidence claimed to have any ten
The defendant testified that the dam and obstructions by which the water was turned into the ditch were annually constructed by the lessee of the Chinese garden and Chico; and that he (defendant) neither assisted in their construction nor directed or advised as to the manner or extent thereof, nor as to the quantity of water to be diverted thereby. This testimony is corroborated by that of other witnesses, and there is no evidence to the contrary. Nor is there any evidence tending to prove that Chico was the agent or servant of the defendant for any other purpose than the construction of the flume, or that defendant ever controlled, aided, or advised Chico in regard to diverting or using the water of the stream. It appears that Chico extended the flume from the Chinese garden to his place lower down the creek, where he irrigated a strawberry bed and an orchard of pear
There is no question that the Chinese garden was riparian to the creek, and that- the owner thereof, or his lessee, was entitled to such reasonable use of the waters of the creek to irrigate the same as was consistent with the rights of other riparian owners. The evidence shows that the quantity of water that might be so used at any given time depended upon the stage of the water in the creek, which varied in different years, as well as at different' seasons of the same year. It follows that defendant had a perfect right to construct a flume to convey water from the stream to his land, for his own use or for the use of his lessee, of sufficient capacity to carry all the water that he or his lessees might be entitled to use at any season of any year. The mere capacity of the flume did not concern other riparian owners, as they could object to only an unlawful or excessive use of it. The flume was not a nuisance per se; and after the defendant leased it, he had no more power or right to control the use of it by the lessee, than he had to control the use of the land and other fixtures leased. The lessee alone was responsible for his wrongful use of it by which others were injured. “ A landlord is not responsible to other parties for the misconduct or injurious acts of his tenants to whom his estate has been leased for a lawful and proper
For the reasons above stated, I think the finding under consideration is not justified by the evidence.
2. Appellant’s counsel further contends that the twelfth finding is not justified by the evidence. That finding is to the effect that, by the diversions of the waters complained of, “ the plaintiff has suffered material damage, and the rights of plaintiff as a riparian proprietor have been infringed and injured, and are threatened with further irreparable injury, as far as said riparian rights are concerned.”
In support of this point it is claimed that the evidence shows that plaintiff had no riparian rights that could have been infringed or injured; that prior to plaintiff’s purchase of the land described in his complaint as to which he claims riparian rights, his grantors had granted to Montecito Water Company (a California corporation) all riparian rights to water appurtenant to or parcel of said land, in consideration of certain shares of stock in that corporation, which shares of stock entitled the holder thereof to a certain quantity of water in proportion to the number of shares, to be conveyed to the land through pipes or aqueducts by the corporation; and that, during
To prove this alleged grant, the defendant put in evidence a long and complicated written agreement between riparian proprietors on the creek (twenty-three in number, including plaintiff’s grantors), of the first part, and the Montecito Water Company, of the second part. Among other things, this agreement purports to be a grant by the parties of the first part to the Montecito Water Company of all the rights of the grantors to the waters of the creek for the consideration above stated.
In addition to this, the evidence tended to prove that the plaintiff regarded the agreement as valid and binding upon him; that as successor to his vendors he had applied to the corporation to have their stock transferred to him, and that it had been so transferred on the books of the corporation; and that he had received on his- land water from the corporation, for domestic and other uses, during the time he complains of having been deprived of water by the defendant; but whether, during all that time, he received from the corporation as much water as he was entitled to by the agreement does not clearly appear.
The agreement purports to be a substitute for a lost agreement, to which it refers, and in some undefined respects to be different from the lost agreement; besides, it is not clear that- all the parties to the lost agreement are parties to the substituted agreement. It is also quite apparent upon the face of the agreement that in order to construe it and determine its effect, if any effect it can have in this action, it will be necessary to consider the circumstances under which it was executed, and the acts of the parties under it, of which there was not sufficient evidence upon the trial. (Gould on Waters, sec. 319.)
In view of the record here, I think it cannot be said that the evidence does not justify the finding that
The right of a riparian proprietor to the flow of a stream of water over his land is an incident of his property in the land, is annexed to the land, and considered part and parcel of it (Civ. Code, sec. 662; St. Helena Water Co. v. Forbes, 62 Cal. 182), but may be severed or “segregated” from the land by grant,by condemnation, or by prescription. (Alta Land and Water Co. v. Hancock, 85 Cal. 219; Alhambra Co. v. Mayberry, 88 Cal. 69; Washburn on Basements, 12, 385; Angelí on Watercourses, secs. 96, 141, 146.) If, therefore, the grantors of the plaintiff, while they owned the land, granted to the corporation (Monteeito Water Company), “its successors and assigns,” all or any portion of their riparian rights to the waters of Monteeito Creek, they thereby, to the extent of such grant, severed from the land their riparian rights, and disabled themselves to grant such rights to the plaintiff; and consequently their grant of the land to the plaintiff did not pass the riparian rights theretofore granted to the Monteeito Water Company, without which the plaintiff is not entitled to complain that those rights have been infringed by the defendant. In other words, the plaintiff is not entitled to maintain an action for the protection of rights which he has not.
It is suggested, however, that even in this supposed
S. G. H. Gould was called as a witness for plaintiff, who, after testifying in chief to facts material to plaintiff’s case, on cross-examination testified that he is the brother of plaintiff and one of plaintiff’s attorneys in this action; that he is a member and the president of the Montecito Valley Water Company; and that the last-named company pays the expenses of the litigation. Thereupon he was asked the following question: Why does the Montecito Valley Water Company pay the expenses of this litigation? Plaintiff’s counsel objected to this question on the ground that it was irrelevant and immaterial, and the court sustained the objection, to which ruling defendant’s counsel excepted. It does not appear by the record that the Montecito Valley Water Company is identical with or successor to the Montecito Water Company; yet for the purpose of showing the interest, bias, and prejudice of the witness, the question was proper on cross-examination, and the court erred in sustaining the objection to it. Under the circumstances, a liberal cross-examination of the witness should have been allowed.
I think the judgment and order should be reversed, and the cause remanded for a new trial.
Belcher, C., and Temple, C., concurred.
For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause remanded for a new trial.
Hearing in Bank denied.