94 P. 424 | Cal. | 1908
This is an action to enjoin the defendants from diverting water from a stream known as the San Pasqual River. The plaintiffs recovered judgment, and the defendants appeal from the judgment and from an order denying their motion for a new trial.
The complaint sets forth two counts or causes of action. Each of the counts alleges that the San Pasqual River is a stream arising in the Volcan Mountains in San Diego County, whence it flows in a westerly course through the San Pasqual Valley to the Pacific Ocean; that the plaintiffs are respectively, owners of seventeen several parcels of land in the San Pasqual Valley, each of which is irrigable and in cultivation, and that said plaintiffs and their predecessors have, for more than thirty years, cultivated their land by means of water taken from said stream, which furnishes the only means of irrigating these lands. It is alleged that the defendants assert the right to, and, unless restrained, will divert at a point about twenty-five miles above plaintiffs' lands, the waters of the stream to the extent of three thousand inches, and that, if the defendants are permitted to make this diversion, each of the plaintiffs will be deprived of water for irrigation.
The foregoing averments are, as has been said, common to both counts. The first contains the further allegation that the San Pasqual River in its natural course flows over, through and along each of the tracts described as belonging to the various plaintiffs, and that the defendants' asserted right of diversion is based upon a notice of appropriation, according to which the water is to be used upon land situated outside of the watershed tributary to San Pasqual River. The second count alleges, in addition to what has been stated, that twenty-five hundred inches of water are required to properly irrigate the lands belonging to the plaintiffs, and that, in order to obtain such supply, the plaintiffs and their predecessors did, prior to 1878, appropriate from the waters of the stream, twenty-five hundred inches, and they have ever since diverted all the water flowing in said stream up to twenty-five hundred inches, and conducted the same upon their several tracts, for use therein. It is further alleged, in the second count, that the water in the stream at plaintiffs' point of diversion rarely exceeds two thousand inches, and during most of the irrigating season is less than one thousand inches. *89
It will be seen that the plaintiffs rely upon two different grounds of objection to the proposed diversion by defendants. In the first count they stand upon their right as riparian proprietors; in the second count they assert a claim as prior appropriators. It may be said at this point that no error was committed in overruling the demurrer to the complaint. The sufficiency of each count to state a cause of action was not, and is not now, questioned. The only points made are that the complaint is uncertain in some particulars. We think the pleading is not open to the objections raised, but even if it were, it is apparent from the record that the defendants were not thereby misled or embarrassed in making their defense, and the overruling of the demurrer would therefore afford no ground for reversal.(Gassen v. Bower,
The answer denies all the allegations of each count, except as to the source of the San Pasqual River and the assertion by defendants of the right, and their intention to take and divert three thousand inches of the waters of the stream, as alleged by plaintiffs. The defendants also plead a separate defense, in which they allege that they hold, pursuant to the mining laws of the United States, certain placer mining claims, of the value of over one million dollars. That it is necessary, in order to work these claims, to take the waters of the stream to the extent of three thousand inches. It is further averred that on April 8, 1893, they posted at the proposed point of diversion a notice of appropriation of the waters of the San Pasqual River to the extent aforesaid, in accordance with the provisions of section
The court found that the San Pasqual River is a watercourse as alleged in the complaint; that the plaintiffs are the owners of the respective tracts claimed by them; that ten of the seventeen holdings described in the complaint border upon the stream. It is found that the plaintiffs' lands have been irrigated from the stream for twenty-five years, and would be of little value without irrigation. The findings declare that for the past eight years the entire flow of the stream has been inadequate to irrigate the lands of the plaintiffs, and that if the defendants are permitted to divert the waters from the stream, each of the plaintiffs will be deprived of water for irrigating his tract of land and will suffer irreparable loss and damage. The court found that the defendants had posted and recorded their notice of appropriation, and had performed the work as alleged in their answer, but had not prosecuted the same diligently. The place to which the defendants claim the right to take the water is found to be on a different watershed from that tributary to the San Pasqual River. There is a finding against the plea of acquiescence and consent on the part of the plaintiffs. The judgment decrees that the defendants have no right or title to the waters of the San Pasqual River, and no right to divert the same, and perpetually enjoins them from taking or diverting from the river any of the waters of the stream, or in any manner whatsoever interrupting, obstructing, or interfering with the free, usual, or customary flow of water down or through said stream.
Many of the findings are attacked as unsupported by the evidence. In connection with the finding of the existence of a watercourse as alleged, attention is called to evidence that the San Pasqual River does not, at all seasons of the year, carry a flowing body of water through the San Pasqual Valley, in which the plaintiffs' lands are situated, and that the location of the river bed or channel is subject to change. It appears that in this valley the stream is dry during the summer months, and that its surface flow begins, in years of ordinary rainfall, about the end of November, and ceases in June. The soil is *91
sandy, and the river bed "varies greatly and changes often," as stated by a witness for the plaintiffs. These circumstances are not inconsistent with the existence of a watercourse, nor do they deprive those owning land fronting on the bed of the stream of the character of riparian proprietors. (Lux v. Haggin,
Finding 15, to the effect that a large part of each of the tracts described in the complaint has for twenty-five years been continuously cultivated by means of water taken from the stream is, it is contended, contrary to the evidence. The finding on this point is, so far as concerns the plaintiffs who have riparian rights, not material. Their right to restrain the diversion, by others than riparian owners, of water which would, if undisturbed, flow past their lands, does not rest upon the extent to which they have used the water, nor upon the injury which might be done to their present use. Even if these plaintiffs had never made any use of the water flowing past their land, they had the right to have it continue in its customary flow, subject to such diminution as might result from reasonable use by other riparian proprietors. This is a right of property, a "part and parcel" of the land itself (Duckworth v. WatsonvilleW. L. Co.,
In so far, however, as the rights of the plaintiffs rest upon prior appropriation and use, it was no doubt necessary for them to show that the proposed diversion would diminish the flow of water which they had been receiving for use upon their lands. That a part of the lands of each of the plaintiffs had been, for many years, irrigated by means of water taken from the stream whenever the supply of water permitted was fully shown by the evidence. The last seven years preceding the trial of the action had been exceptionally "dry," and during them the flow of water had ceased earlier in the spring than in former years. The fact that during this period the plaintiffs had not been able to get as much water as theretofore did not destroy the continuity of their use, nor deprive them of the right to use the amount formerly diverted in the event that the flow of the stream should again furnish such amount. It is urged that there is no evidence to support the finding that the proposed diversion by defendants would cause irreparable damage or loss to plaintiffs. But the plaintiffs offered evidence to show that during the seven or eight years preceding the trial, the flow of water in the stream had been so light that there was no surface flow at the lower end of the valley. One of defendants' witnesses testified that nobody in the San Pasqual Valley "gets plenty of water for irrigation." It is apparent that if, as matters now stand, the plaintiffs are unable to get from the stream all the water they need (and claim to be entitled to), they will be damaged, if defendants are permitted to divert, at a higher point, three thousand inches of the water of the stream. It is true that there is evidence to the effect that during the summer months, when the stream is dry in the San Pasqual Valley, there is some water running at the defendant's point of diversion. It does not follow, however, that the taking of this water would not injure the respondents. There are long stretches of sandy bottom between the defendants' proposed works and the lands of the plaintiffs. Water flowing over the rocky bed above sinks into the sand, which must become saturated before there can be a flow over its surface. To so fill this sand requires, as witness testifies, several weeks. The court was justified in drawing from this testimony *93
the inference that an interruption to the flow of this water would prevent or diminish the saturation of the sandy bed underlying the stream and thereby materially postpone the time when a surface flow would come to plaintiffs' lands. Such postponement would be a clear injury to the plaintiffs, whose interest in the waters of the stream included the right to have the river bed continue to hold sufficient water to supply and support the surface stream in its natural state. (Los Angeles v.Pomeroy,
The appellants make the further point that they are restrained from taking any of the water of the stream, although the evidence shows that, in times of flood, large quantities of water, far exceeding any amount that can be used by the plaintiffs, passes down the stream. It has been held that an injunction will not issue to restrain a diversion of water during times of extraordinary floods where such diversion will not perceptibly diminish the stream below. (Edgar v. Stevenson,
The point is made that the decree should have permitted the defendants to divert the water, on condition that they returned it to the river above plaintiffs' lands, no less diminished than it would have been in its natural flow to the point of return. It may be that a decree so limited would have been proper if the evidence had shown that the defendants were able and willing to make such return of the water. (Gould v. Eaton,
The findings already discussed lead to the conclusion that the plaintiffs, whether as riparian proprietors or as prior appropriators of all the waters ordinarily flowing in the stream, had a right superior to that of the defendants, even if the latter did everything required under the statute to constitute a valid appropriation. There is no occasion, therefore, to consider whether the evidence justified the finding that the defendants had failed to prosecute their work diligently. If the finding on this point had been in their favor, it would not have enlarged the rights of the appellants.
The judgment and order are affirmed.
Shaw, J., Angellotti, J., Lorigan, J., and Henshaw, J., concurred. *95