64 F. 510 | 9th Cir. | 1894
Lead Opinion
(after stating the facts). The argument of this case extended over a very wide range, embodying within its scope nearly every principle that has ever been enunciated by the courts, touching in any manner upon the question of the rights of appropriation of water from the public streams or upon private lands, — the incipiency of such rights, the manner of their acquisition, how they may be kept up and maintained, and in what manner and under what circumstances such rights may be lost. We consider the law to be well settled that the right to water flowing in the public streams may be acquired by an actual appropriation of the water for a beneficial use; that, if it is used for irrigation, the appropriator is only entitled to the amount of water that is necessary to irrigate his land by making a reasonable use. of the water; that the object had in view at the time of the appropriation and diversion of the water is to be considered in connection with the extent and right of appropriation; that if the capacity of the flume, ditch, canal, or other aqueduct, by means of which the water is conducted, is greater than is necessary to irrigate the lands of the appropriator, he will be restricted to the quantity of water needed for the purposes of irrigation, for watering his stock, and for domestic use; that the same rule applies to an appropriation made for any other use or purpose; that no person can, by virtue of his appropriation, acquire a right to any more water than is necessary for the purpose of his appropriation; that, if the water is used for the purpose of irrigating lands owned by the appropriator, the right is not confined to the amount of water-used at the time the appropriation is made. He would be entitled, not only to his needs and necessities at that time, but to such other and further amount of water, within the capacity of his ditch, as would be required for the future improvement and extended cultivation of his lands, if the right is otherwise kept up; that the intention of the appropriator, his object and purpose in making the appropriation, his acts and conduct in regard thereto, the quantity and character of land owned .by him, his necessities, ability, and surroundings, must be considered by the courts, in connection with the extent of his actual appropriation and use, in determining and defining his rights; that the mere act of commencing the construction of a ditch with the avowed intention of appropriating a given quantity of water from a stream gives no right to the water unless this purpose and intention are carried out by_ the reasonable, diligent, and
But the contention of apprllees is that appellant: is not entitled to any amount whatever, under or by virtue of any appropriation that was made of the waste water flowing in the Berry Roberts ditch upon wlxich this suit was brought; that such rights as were ever acquired by such appropriation were either abandoned or lost by non user, by the statute of limitations, which is specially pleaded, and by the prescriptive rights acquired by a pjoriion of the appel-lees, aud (hat appellant is estopp>ed, by the line of conduct and action of himself and his predecessor in interest, from asserting any right oi* claim to such waters Cor the purpose of irrigating his lands.
“Recognize the fact that there may he an abandonment of the exclusive right to divert and use water acquired by, or resulting from, a prior appropriation; that such an abandonment may be made either after the prior appropriation has.become perfect and complete, and the right under it vested, or while it is yet imperfect and incomplete, and the right under it remains inchoate; and, finally, that an abandonment may be express and immediate, by the intentional act of the appropriator, or may be implied from his neglect, failure to use due diligence in the construction of his works, nonuser of them after“completion, and the like. The general doctrine concerning the effect of such an abandonment, at whatever time or in whatever manner made, is well settled. ' The prior appropriator thereby loses all of his exclusive rights to take or use the water which he had acquired, or might have acquired, by his appropriation; and he cannot, after an abandonment, reassert his original right to the same, or the same amount of water, as against a second or other subsequent claimant, who has taken proper steps to effect an appropriation thereof.”
In Water Co. v. Crary, 25 Cal. 509, tbe court said:
“The right of the first appropriator may be lost in whole, or in some limited portions, by the adverse possession of another; and when such person has had the continued, uninterrupted, and adverse enjoyment of the water course, or of some certain portion of it, during the period limited by the statute of limitations for entry upon lands, the law will presume a grant of the right so held and enjoyed by him.”
In Davis v. Gale, 32 Cal. 34, tbe court said:
“A party acquires a right to a given quantity of water by appropriation and use, and he loses that right by nonuse or abandonment. Ax>propriation, use, and nonuse are the tests of his right.”
In Smith v. Logan, 18 Nev. 154, 1 Pac. 678, tbe court said:
“The findings show that from the year 1861 until 1807, inclusive, Logan irrigated from ten to thirty-five acres of land. During the years 186S, 1800, and 1870 he made no use of the waters, and in 1871 and 1872 he irrigated but five acres. During these five years plaintiff and his predecessors in interest used the waters of the creek under their appropriations adversely to Logan. They therefore acquired the right to so much of the waters appropriated by Logan as he failed to use during the period limited by the statute of limitations.”
Section 1007 of tbe Civil Code of California provides that:
“Occupancy for the period prescribed by the Code of Civil Procedure is sufficient to bar an action for the recovery of the property, confers a title thereto, denominated a title by prescription, which is sufficient against all.”
Section 1411, under tbe title of “Water Rights,” declares that:
“rrhe appropriation must be for some useful or beneficial purpose, and when the appropriator and his successor in interest cease to use it for such a purpose, the right ceases.”
The acts and conduct of appellant and of bis predecessors in interest, relative/to tbe use of tbe Berry Roberts ditch by tbe owners of tbe South Fork Company as part of their system for -conveying tbe water which belonged to tbe South Fork ditch by right of prior
■T1‘the defendants used and held the water adversely for five years next before suit was brought, the inert- disputing; their right to such possession by (ho plaintiff would not prevent the bar of the statute. * * * The seventh finding- might be literally true. — that is, defendants and their grantors might have ‘claimed the right to the exclusive use of all the waters,’ — and yet they may never have been for a moment, in the possession of such waters.”
No heed was ever given — no attention ever paid- — to the asserted claim of ownership made by Borron or appellant. The asserted claim was never recognized nor in any manner respected by any of the ap-pellees, nor by any of the parties using lite Berrv Roberts ditch for the purpose of conveying the water of the MoutliVork ditch therein. The contention of appellant that the use of the Berry Roberts ditch was consented to by appellant and his grantor, and only amounted to a temporary license, which was revocable at their will and pleasure, is not sustained by the facts. The suit is without merit, and devoid of any equity whatever. Appellant’s rights to water for the purpose of irrigation have not been impaired. Whatever rights he or his grantor ever had to the waste water during the irrigating season have been lost by- their conduct and by their nonuse of the water, and appellant is not in a position to complain of the use of the waters of the Santa Ana river by oilier parties.
To recapitulate: The locators of the Berry Roberts ditch claimed (he waste water of the river to irrigate their lands situate in section 1(5. After a few years they discovered that such waters were wholly insufficient for such purpose; that said ditch and the water rights acquired by its construction could not be relied upon to furnish water during the dry or irrigating season; that, to quote (lie language of one of the witnesses, the water was so scarce that the land was liable to “dry up and blow away.” The locators then, for the purpose of obtaining the necessary quantity of water to irrigate their lauds which were fit for cultivation, procured, by agreement and purchase, certain interests in the waters flowing in the South Fork or Timber ditch, which, with the North Fork ditch, had a prior right to the waters of the Santa Ana river, as against the
“A party who has boon in the continued, exclusivo, adverse possession for live years is entitled to Hie benefit of the statute of limita Hons, although the live years are not next preceding the commencement of the action.”
As against the appellees who have acquired rights to the waters of Betm creek and the Sania Ana river subsequent to the location of the JBeriy Roberts ditch, Hie question here is, as staled in Hill v. Smith, supra:
“lias 1 lie plaintiff’s use ami enjoyment of the water for ihe purpose for which lie claims its use been impaired by the acts of defendant?”
This suit, it must continuously be borne in mind, is exclusively founded upon the alleged right» of appellant of water for irrigating purposes during the irrigating season, and not for any deprivation of water during- the rainy season, or the waste waters then flowing in the Sania Ana river, or through any of the many ditches or canals that have been mentioned. If is therefore necessary for appellant, in order to sustain this action as against the subsequent, appropriators, to affirmatively' show that Ms right to the waste waters of the Bern' Roberts ditch for use during the irrigating1 season has been impaired by the wrongful and unlawful acts of the appellees to his injury. This he has not done. Ho injury- has been shown. The absorption of the right to flow water* into the Berry Roberts ditch by the South Fork Company, and the use of said ditcli for the conveyance of the water were really- beneficial, instead of detri
“The gravamen of plaintiff’s action being the deprivation of water for irrigation during the irrigating seasons in the years 1883, 1884, and 1885, whereby he suffered loss, it is incumbent on him to show by satisfactory evidence (Code Civ. JProc. § 1835) a right to the use of the waters of the creek during each of such seasons, and interference with such right and a consequent injury.”
The sáme general principles are announced by the supreme court in Atchison v. Peterson, 20 Wall. 514. Mr. Justice Field, in delivering the opinion of the court, after citing and reviewing certain cases in the courts of California and Nevada, said:
“What diminution of quantity or deterioration in quality will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of such case, considered with reference to the uses to which the waste water is applied. * * * In all controversies, therefore, between him and parties subsequently claiming the water, the question for determination is necessarily whether his use and enjoyment of the water to the extent of his original appropriation have been impaired by the acts of the defendant.”
Upon a review of the evidence, and of the principles of law applicable thereto, we are of opinion that the conclusion reached by the circuit court is correct. The judgment of the circuit court is affirmed, with costs.
Dissenting Opinion
(dissenting)-. The first question presented for consideration is as to the jurisdiction of the court in which the suit was instituted. The suit was commenced in the circuit court of the United States for the Southern district of California. The first bill was filed on January 10, 1887. To this bill, answers were filed, and issue joined. Subsequently, considerable evidence was taken in the case. On the 5th day of November, 1888, complainant came into court, and asked to be allowed to withdraw his original bill of complaint, and to file an amended bill, which request was granted. On March 7, 1889, it was stipulated that the respondents in the suit might amend their answers to the amended bill of complaint on or before the 18th of that month. Other matters were also provided for in said stipulation. On the said 18th day of March, one of the respondents, named Brown, filed, instead of an amended answer, a plea in abatement to the jurisdiction of the court. The matters alleged were (1) that the complainant was a citizen of the state of California, and not of New York, as alleged in the bill, and th'at respondents were all citizens of the first-named state; (2) that other persons claiming, under the same title with complainant’s, interest in
"That if in any suit commenced in a circuit court or removed from a stale court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court or that the parties to said suit have been improperly or collusively made or joined either as plaintiffs or defendants for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no farther therein, _ but shall dismiss the suit, or remand it to the court from which it was removed as justice may require.”
There is nothing in this statute which would show that there was. any intention of changing the order in which a defendant or respondent may make his pleadings, it does seem, however, that this statute has changed the mode ip which (he objection to the jurisdiction of the court may he made. Formerly the practice was to make it by plea: nowT it may be made in different ways, in the case of Morris v. Gilmer, 129 U. S. 315, 9 Sup. Ct. 289, the supreme court says:
“The statute does not prescribe any particular mode in which such fact may be brought to the attention of the court. It may be done by affidavits,, or the depositions taken in the cause may be used for that purpose. How-era- done, it should be upon notice to the parties to be affected by the dismissal.”
“Under the act of March 3, 1876, determining the jurisdiction of circuit courts of the United States (18 Stat. 470, 472), the affection to the jurisdiction upon a denial of the averment of citizenship is not confined to a plea in abatement or a demurrer, but may be taken in the answer; and the time at which it may be raised is not restricted.”
I think, upon a review of these decisions, it will be seen that the mode in which the objection to the jurisdiction may be made is changed by the statute, but not the order in which a plea in abatement to the jurisdiction may be filed. Except so far as the matters were presented in the discussion of this plea in abatement, the jurisdiction of the circuit court was not raised. There cannot be much doubt as to the ruling of that court as the case was presented. There does not seem to be any doubt but that the very questions sought to be presented by the said plea in abatement may be raised in this court without such plea. In the case of Morris v. Gilmer, supra, the supreme court said:
“At the present term, it was field tfiat wfietfier the circuit court fias or fias not jurisdiction is a question which this court must examine and determine, even if the parties forbear to make it, or consent tfiat the case be considered upon its merits.” Metcalf v. Watertown, 128 U. S. 586, 9 Sup. Ct. 173.
To the same effect is the case of Nashua & L. R. Corp. v. Boston & L. R. Corp., supra.
About the same questions as were presented in the plea in abatement were presented in the answers of respondents. It is proper that they should be considered. It is urged that the evidence shows that complainant was not a citizen of New York, but of the state of California, when suit was commenced. This is the evidence adduced to establish this fact. Harvy Hewitt, son of complainant, said, in giving in his evidence:
“Q. Where has your father resided since he returned to the state? A. A greater portion of the time fie has resided on the ranch, in section 10. Q. Is fie. a married man? A. My father? Q. Yes, sir. A. Yes, sir. Q. Has fie fiad a family with him? A. Why, I should say fie had.’!
There is some other evidence bearing upon this point. In speaking of a deed desired to be introduced in evidence, the complainant, in giving in his evidence, said:
“Q. Mr. Hewitt, since the taking of the testimony last fall, have., you made any search for tfiat deed? A. Yes, sir. Q, Where did you make tfiat search for that deed? A. 1 have made it during— I made it among my home papers at New York.-’
The evidence shows that the complainant had been engaged in the mercantile business in Cleveland, Ohio, for 25 years, and that for the 18 years previous to his coming to California he had been in business in New York City. In speaking about his taxes he said he paid taxes on a house and lot in New York and on a house and lot in Cleveland. He made a contract to purchase the ranch, irrigated, from
It is urged that the bill should be dismissed for the further reason that one Story, who, it appears, owns one-third of the Berry Roberts ditch, and the waste-water right used through the same, should have been made a party complainant in the suit. If he was a necessary party complainant in the bill, then this point may be well taken. It appears that Story was a citizen of the state of California, and was not only interested in the Berry Roberts ditch, but claimed some interest in the South Pork ditch of the Santa Ana river, Sunnyside Division. In the bill it is charged that the parties owning in this ditch had diverted, with others, water to which complainant was entitled. If the respondent Story was associated with the owners in that South Pork ditch, and had co-operated with them and others in diverting the water to which complainant was entitled, he Avas a proper party respondent. It seems to be urged, howeArer, that, because Story was a one-third owner in the Berry Roberts ditch, complainant could not proceed without making him a party complainant, orc showing some reason for not doing so. This presents the question, c.ould the rights of Hewitt be determined, as far as the Berry Roberts ditch is concerned, without making Story a party, so that his rights would also be determined therein? This point was presented in the Mining Debris Case, 8 Sawy. 628, 638, 16 Fed. 25. In rendering a decision upon demurrer to the bill in that case, Judge Sawyer said:
“I am satisfied, also, that the complainant is entitled to maintain the suit without joining his eotenant or making him a defendant. His interest —his estate — is several. There is but a unity of possession. His interest, or estate is capable of being injured, and he is entitled to have it protected from irreparable injury, whatever course his cotenant may see fit to pursue. He claims nothing against his cotenant. The cotenant is not an indispensable party to a determination of his rights. In this state, both before the Code, under the common-law rules, and after the adoption of the Code, by express provision carrying the former rule into it, it was settled that tenants in common could sue alone."
When a tenant in common is given the privilege, by a state statute, to sue alone to protect his rights, I do not see but this comes within the rule recognized by the federal courts, — that, where a right is given by a state statute, a federal court may be called upon to enforce it. The following cases maintain that one tenant in common can sue for an injury to his estate or interest: Goodenough v. Warren, 5 Sawy. 494, Fed. Cas. No. 5,534; Himes v. Johnson, 61 Cal. 259; Lytle Creek W. Co. v. Perdew, 65 Cal. 447, 4 Pac. 426. The diversion of water from one entitled thereto is in the nature of a private nuisance. Parke v. Kilham, 8 Cal. 79; Water Co. v. Chapman, Id. 392. All the rights of Hewitt in the Berry Roberts ditch can be adjudicated without joining with him his cotenant Story. It does not seem to me necessary that he should have been made a party complainant.
But it is also urged that certain parties who were owners in the South Pork and Sunnyside Division ditch, and whose name's Averé suggested by the answers of respondents, were not made parties re
“I can perceive no sound reason, in the established principles of equity-jurisprudence and practice, wliy two or more of the parties injured by the common nuisance should not be permitted to unite, and two or more of those co-operating to commit it should not be joined in one suit to redress the injury, and to enjoin a continuance or increase of the nuisance thus in common inflicted.”
The respondents, in tlieir several answers to the bill, made certain denials of having diverted the waters of the Santa Ana river so as to prevent any of them from flowing down to the Berry Roberts ditch and to complainant’s land; hut these denials involve what is termed a “'negative pregnant,” and, as a fact, they admit such diversion. They are to the effect that they have not diverted, appropriated, or ust'd any quantities of the water of the Santa Ana river in excess of the quantities lawfully belonging to any prior or subsequent appropriators, or any other waters than such as said respondents are entitled to as appropriators. They deny that they threaten to divert, appropriate, or use any waters of said Hanta Ana river, except such as they are legally enütled to divert. They deny that the said respondents prevent any water flowing to the complainant’s land to which he is legally entitled, or in any manner entitled. Now, as to all these parties, there can be no doubt they were made respondents properly, as they admit, as E have said, the diversion,complained of. Whether, in doing so, they have interfered wifli any of the rights of complainant, is the matter to be determined in this action. I do not see how any' statement in the answers as to the other parties show that they are necessary parties in this action, but that without them the case cannot proceed to judgment. Considering all these matters, I do not think the respondents have shown any lack of jurisdiction in the circuit court or in this court.
We come now to the merits of the case. It appears that the first appropriators of any of the waters of the Santa Ana river constructed
It is, I think, well established that up to 1874, when the owners of the Timber ditch water began to divert their water through the Berry Roberts ditch, there was a waste-water right used through that ditch; that is, the water left in the stream after the South Fork and the North Fork or Van Leuven ditches were filled. Unless abandoned, two-thirds of that right has been vested in complainant through proper conveyances. The right of complainant in this waste water and the Berry Roberts ditch is now denied, and the use thereof prevented, by some of the respondents at least. It is contended that this right was lost by abandonment. The decision and judgment in
“But in such cases the leaving of the premises must have been voluntary, and without any express intention of resuming the possession.”
In that case the claimant of the preanises left an agent in charge; and in regard to the effect of this he said:
“This circumstance is of itself sufficient to rebut the presumption of abandonment arising from Ibe fact that he ceased to occupy them.”
In this case, Borron, ihe grantor of claimant, left Col. Tolies as his agent in charge of ids property, including his water rights. The fact of the owners of Timber creek water getting into possession of the Berry Boberts ditcb appear to be about these: According- to the evidence of Col. Tolies, a respondent: in this case, an agreement was made between the parties, which he says was as follows:
•‘The agreement, in substance, was that, if (they having- first forbid our use of water in that ditch by putting in a dam to shut it off from our use) we would contribute to the enlargement and the repair of the ditch, we could then divert our interest, and receive our water pro rata from the Timber ditch.”
He stated also that it was in contemplation, at the lime this agreement was made, that a new ditch should be constructed to convey the water of the South Fork or Timber ditch to the different owners. Witness Glover, called as a witness for complainant, said of this agreement:
“Mr. Ball was acting as water master, and ho asked a question, — the parties were all together, — if this was a. permanent thing. The answer given was that, as soon as the new ditch was built, they would have no more use for this Berry Boberts ditch. Well, under that understanding, the water went, in. and no objection was made.”
The evidence shows that the ditch was enlarged to double its former capacity, and the Timber ditch water owned by certain parties put into it. For the first year there seems to have been no regular apportionment of the water to different claimants. The next year (1875) there was, and the water tickets took notice of this waste-water right. Mr. Borron was there that year, and looked after the matter, it is presumed, himself. In 1877 or 1878 the new ditch was built, called the “Honih Fork Ditch,” and most of those who had owned water in the Timber ditch took their water out of the Berry
“He was particular to advise me to maintain intact all his water rights and interests, referring also to hisi claim in the waste-water right.”
Again, Col. Tolies, in regard to certain language in a letter he wrote to Borron in 1880, said, when a witness:
“Q. In your letter to Borron, dated November 22, 1880, which you have identified as being your handwriting, you siieak of the waste-water right of Borron being retained the same as when he was there? A. Yes, sir. Q. Now, what right did that have reference to, and right in what ditch? A. Well, the right was one which he always maintained after his purchase of the Suverkrup property, and the use of it through the Berry Huberts ditch.”
On redirect examination be again testified:
“Q. You have just stated, in answer to the gentleman, that the waste-water right referred to there was one that had been maintained, as I understood you, by Mr. Borron. Maintained in what way, do you mean? What do you mean by the word ‘maintained’ ? A. I meant to convey the idea that he had claimed such a right and interest, not strictly as maintaining it by its use, but by setting up that claim.”
Again, Col. Tolies, upon cross-examination, after having testified . that Borron had employed him as his agent, said, in response to the following questions:
“Q. You accepted that employment, and he left you as his agent in charge of the property, did he not? A. Yes, sir. Q. To protect his rights? A. Yes, sir. Q. In this matter that you are testifying to, as the privilege of putting in the water which you claim from the Timber ditch, Mr. Borron didn’t propose to re-lease you any rights which he may have had, did he? He did not intend to give you any of his rights, did he, as you understood it? I mean to water. A. Not to -water. Q. He did not intend to create in you any ownership of water, did he? A. No, sir. Q. It was simply as to whatever water you might have the right to bring from Timber ditch? A. Yes, sir. Q. So that substantially it was this: Whatever water you have a right to of the Timber ditch water you rnay put into our canal or our ditch? A. Yes, sir. Q. That, and nothing more, was it? A. That was all. Q. Provided you keep up the repairs as stated? A. Yes, sir. Q. That was the substance of it? A. Yes, sir.”
This sort of questions and answers might be referred to for some túne.
When Borron conveyed his property to Hewitt, he conveyed this waste-water right. The agreement fpr a conveyance ivas made in 1881,' but the deed does not appear to have been signed until 1882. In 1881, ITewitt went into the possession of the property. The evidence of Harvy Hewitt is that he used this waste-wrater right on
Under the statute of limitation it was held by the supreme1 court, in the case of Doswell v. He La Lanza, 20 How. 29, that the possessiem “must; be, in the language of the authorities, actual, continued, adverse and exclusive for the space required by the statute.” Could this possession be said to be exclusive when Borron and Ball were; holding possession with the other claimants of water in- the timber
Taking into consideration that Borron must have been in possession of the Berry Roberts ditch to the extent that he used it for Timber ditch water, and we reach another point in the case that I think is conclusive, as far as the adverse possession of this ditch is concerned. “The rule is that, where there is a mixed possession,— that is, where there are two or more persons in possession, each under a separate conveyance or color of title, — the possession will be treated as being in him who has the better title, upon the ground that the seisin is in him who has the best title, and, as all cannot be seised, the possession follows the title.” Wood, Lim. Act. § 261; Langdon v. Potter, 3 Mass. 215; Bellis v. Bellis, 122 Mass. 414. I think the case of Hunnicutt v. Peyton, 102 U. S. 333, 363-369, supports this doctrine. I do not see how it can be held that the respondents held any distinct and deñnite part of that ditch as against Borron. As tenants in common of the Timber ditch water, they had a unity of
“Q. And di d they cease, then, from talcing- any wa ter through t he B .Try Roberts ditch? A, Well, no, sir; there was a claim set up then to that water as waste water. Q. Well, what was done about it? A. Well, there were parties. who owned their water in what was called the ‘New Bitch,’ claimed they had a right in the other ditch, and this was disputed hy representatives of the Berry Roberts, ditch, and it worked along that way for quite a number of years. Q. ‘'Well, what did the owners or elaimers of the Berry Roberts diieh do in regard to the water in that ditch, or through that ditch? A. They undertook to use it. Q. Well, did they use it? A. Yes, sir. Q. Now, where was that water used, and who by? A, Well, it was used principally on what is now known as the TJewiit Ranch,’ and what was known as the ‘Berry Roberts Ranch,’ or on this section 16.”
Tlie Berry Roberts ranch is the same as the Ball ranch. On the 1st day of January, 1882, Borron conveyed his rights to Hewitt. It seems Hewitt had gone into possession of all Borron’s ranch, and property connected with his ranch, in San Bernardino county, in the fall of 1881. This was less than four years after we hear of any claim to this waste-water right. This is what Harvy Hewitt says as to his use of this right:
“Q. Now, state what use has been made, if any, of the waters of the Sania Ana river during the years from 1881 down to the present time by your father, if yon know, and where has the water been used? A. The water has been used by my father in his place in section sixteen, township one south. Q. Well, how? A. Used for the purpose of irrigation. Q. For the last few years? A. In 1881 it was not used continuously because the ditch did not run the entire year through, but all the time that the water was in the ditch it was used. Q. You mean that the ditch did not run, or that the river didn’t run, or that the water didn’t run? A. The water didn’t run. Q. Well, how in 1882, 1886, and 1881? Go right along. A. In 1882 we used the water with some exceptions. At some limes the water was taken. We turned it back, and used it. Q. Well, how about the other years right along? Oh, state generally whether you used it. A. Well, generally in 3883. lu the spring of 1884 the ditch— There was considerable water, and the Smmyside water master took possession of it. Q. With your consent or without? A. Without our consent and under my protest.”
The witness Valdez, called hy respondents, said, in answer to questions of counsel for them:
‘■Q. How did you get your water? A. From Mr. Rob Roberts. Q. What is the name of the ditch, — Berry Roberts? A. Berry Roberts ditch and Sun-nyside ditch. Q. Were you working there on lime cards? A. 1 don’t understand you. Q. Were you working there, having water issued to you then, or delivered to yon on time, which was represented by a card? A. Well,*532 not Berry Roberts ditcb. I don’t recollect we ever used it in tbat way. He always claimed tbat as bis water, and we always used it whenever we wanted to.”
On cross-examination be testified:
“Q. You said, in your direct examination about this Berry Roberts ditcb, he used tbat water whenever be bad a mind to, didn’t be? A. Yes, sir. Q. And irrespective of any time tickets, as far as you know? A. Not tbat I knew tbat there was any tickets of that water. Q. Tbat was your understanding, was it? A. Yes, sir; tbat is the way I understood. Q. That there was no tickets? A. Yes, sir. He always claimed that water, and we used it whenever— He seemed to send the water whenever he wanted it.”
This evidence pertained to the years 1884 and 1885. His evidence and that of Hewitt is corroborated by that of Glover upon this point.
I cannot find that as to this waste-water right it was definitely contradicted by any other evidence. There was never any location of a waste-water right by the South Fork Ditch Company. The action that was done in 1877 by the water commissioners cannot affect any title to the Berry Roberts ditch or the waste-water right. The recitation that they acted upon a petition of the owners of the Berry Roberts ditch does not prove the fact. This was a location of another ditch to be constructed from another point, and was used to convey these peregrinating water rights of the Timber ditch evidently as understood when they were put into the Berry Roberts ditch. The record says “E. A. Craw and William Curtis met at the mouth of the Santa Ana cañón, and did change the location of the Berry Roberts ditch in the following manner,” etc. This is not a location of the Berry Roberts ditch. Its head is near three miles above that of the Berry Roberts ditch, and it covered and ran through different ground for most of its course. It seems, however, these parties claiming to own the Berry Roberts ditch, after they had changed its location, did not seem to want to give up the former location thereof. They now claim both. There is shown no right, as far as Borron is concerned, in these commissioners, to change the location of that ditch. At all events, it cannot be held to be a location of the waste-water right of Borron and Ball.
A contention of some kind seems to be made to the effect that the appropriation of the waste-water right was not valid because an appropriation of water must be for some beneficial purpose, and that it appears that more water was appropriated than would irrigate the land sought to be irrigated thereby. There is evidence that in that locality one inch of water will irrigate seven acres of land, and one witness gave evidence that, in cultivating some fruits, one inch would irrigate ten acres of land. If this would make the Berry Roberts waste-water right void, at the date of its appropriation, for the reason assigned, then the appropriation of water in the Timber ditch was also void. The claim that one inch of water suffices generally to irrigate seven acres or ten acres of land in the San Bernardino valley, where the soil is a sandy loam, and the atmosphere dry, does seem to me to tax even the credulity of one accustomed to irrigation in other sections of country to a considerable extent. When acquired, I do not think there is any doubt but that the Berry Roberts waste-water right was a valid one. The change of notions concerning irriga-
There is one further clause in the evidence of Ool. Tolies 1 will recite as bearing upon this question:
"Q. What consideration, if any. has he had in this distribution as to the matter of waste water? A. There was no distribution of waste water, to my knowledge, to the parties mentioned, — Mr. Borron or Ball, — during that time, other than was during the rainy season, when all parties shared alike in the surplus water."
This is followed up by several answers.
Now, if the waste water was used at any time during the year by Ball and Borron, or either, that right was preserved. But, as I think 1 have shown before, there were no five years when this waste water was not: used by some of the owners thereof in the irrigating season. I;!: would seem to me that the act of allowing the owners of Timber ditch water to put their water in hr the Berry Roberts ditch by Ball and Borron was an act of neighborly kindness and accommodation, and the attempt of those thus favored to use this act to show that the owners thereof had thereby abandoned their right to the same, with the water right connected therewith, and that the respondents herein so accommodated had acquired all of the same, should not appeal with much force to a court of equity and conscience. Considering this ease as best L could, l have been unable to roach the conclusion that either the ditch or* waste-water right to which complainant asserts title has been abandoned by his predecessor in interest or himself. I will say that the record is an unsatisfactory one. Maps used ou the hearing were left out by stipulation. They were needed to explain evidence. The evidence is so mixed up with objections and motions a,nd immaterial evidence as to be confusing.
Complainant, also makes claim to certain other water originally used in the Timber ditch. This is urged upon the ground, as I under
In 1873 the Civil Code of California went into effect. Section-1415 of said Code, upon the subject of irrigation, provides:
“A person desiring to appropriate water must post a notice in writing in a conspicuous place at the point of intended diversion stating therein, (1) that he claims the water there flowing to the extent of (giving the number) inches measured under a four inch pressure; (2) the purpose for which he claims it, and the place of intended use; (3) the means by which he intended to divert it, and the size of the flume ditch, pipe or aqueduct in which he intends to divert it. A copy of the notice must within ten days after it is posted be recorded in the office of the recorder of the county in which it is posted.”
There are other provisions of the statute not necessary to be here referred to. Then follows this provision:
“See. 1419. A failure to comply with such rules deprives the claimants of the right to use the water as against a subsequent claimant who complies therewith.”
There were notices of the location of all such water by other parties. Neither complainant nor his grantors complied with this statute in making any appropriation to any of the abandoned waters of the Timber ditch. This claim is therefore not maintained.
The locators of the Berry Roberts ditch claimed a waste-water right. The water commissioner noted this claim. The evidence shows what was meant by this term, “waste water.” It was the water that was left after the North Fork and the Timber ditch or South Fork ditches were supplied from' the waters of the Santa Ana river. It is not an easy matter to determine from the evidence how much water was in fact appropriated as this waste water through the Berry Roberts ditch. Berry Roberts was of the opinion his ditch would carry about 175 inches of water, miners’ measurement. Glover claimed that at one time it would carry about 300 inches, and at another time 200 inches, of water under miners’ measurement. Tolies said that, at times Timber ditch water was put into it, it would not carry more than 100 or 150 inches of water, miners’ measurement, but that the ditch was then oiit of repair. The evidence shows that, about the time the Timber ditch water was put in, the ditch was enlarged to double its capacity. There were measurements of the' ditch after it was enlarged, that would appear to be reliable, that made the capacity of the ditch about 480 inches, measured as above stated. There is one thing to be noticed concerning the evidence estimating the number of inches of water in any ditch from 1860 to 1878. The early estimates of water were much less than the later, and the actual measurements seem to have shown at all times a much
This opinion was written with the thought tha t it might, be adopted as the opinion of the court in the case. Finding that the majority of the court do not agree with the conclusions I have reached, I present the same as my individual views, and as a dissenting opinion.
