*1 EABkEB V. SwETT. is reversed and the cause remanded the lower solely for a new issue of trial damages, court, upon amount of with directions to that settlement of in favor issue, to render for the amount so found. Shaw, Sloane, J., Shurtleff, C. Rich Wilbur, J., J., J., ards, J., pro tem., Lawlor, J., concurred.
Rehearing denied.
All the Justices concurred. March 24, F. No. 9559. In Bank.
[S. 1922.] al., HOMER PARKER, et Respondent, C. v. E. C. SWETT Appellants. March 24, F. No. 9748. In Bank.
[S. 1922.] HOMER F. CARLSTON PARKER, Respondent, C. J. al., Appellants.
et [2] [1] Waters such a Id.—Reopening thereon take and Rights—Quieting request additional been submitted to the court for decision it tionable issue, reserved obtain his share of the water opened upon other an action to the easements to quarry mentioned in reservations not the court did not designated point ease, in declaring in a divert testimony one character, where quiet Water exercise of his deed Case—Additional waters Title—Form title after subjects. partitioning Bights—Partition—Reservation parties provide identify err in from a stream at a certain the trial had closed and the being “part riparian right. for the plaintiff's right easements a means refusing op the obvious the location Decree.—Where carry Testimony—Discretion.-—In sole to allow the ease to be whereby plaintiff the decree is not involved in purpose of” to his land for use purpose to take the water reopened the roads easements to introducing and effect cause op present Water objec could had is, March, v. 1922.] vation Where Appeal—Section lose them Id.—Basements Under section procedure, for courts cannot set sulted in of having opinion error a unless the miscarriage mere disuse. or easements are the effect of an 4% in Acquired 4%, aside the admission or of article VI of the court, upon examining the Article a judgment particular justice. Grant implied grant, acquire "VT, rendered Constitution—Construction. error rejection d constitution, by grant, or Reservation—Disuse.— complained of evidence record, owner superior by a reser of *2 appellate does shall has court re be in [6] Waters time other action had Judgments—Evidence—Estoppel.—Although evidence tice. will Each such neither admitting share Id.—Easements—Quieting certain purposes thus to lands period may use all the water quiet a certain tract of boundary consumed be of the decision on rights allowed title to certain easements Other.—The of each having point, tract will with limit and Water others and each an adjudication drinking must be exercised and the use must domestic animals respect which the present action, considering the cannot use the year, as it is not evidence riparian use of water. is not be available tract, should Rights—Riparian become rights land, except all returned to each judgment, stream) and constitute an proper cannot being any place on that not be Title—Judgment.-—In final at the time of its but will be rights pasturing thereon whole stream as there other, to take riparian proprietors attach. waters, in this at other (reserved in in which result entitled for within the forbidden. the decree are mutual supply Proprietors—Relation action, final when affirmed and divert waters needs of the channel before times any part a event years province of a estoppel, tract, miscarriage of owner of the and at to his be made deed during a certain the use when provided it an action on the for admission provide that partitioning other; and reasonable reciprocal, year pasturage them, on drinking only on in an of the at the ruling passes rights same time than jus in easement, notes, extinguish an operating to nonuser Mere 3. R. A. 423; 18 L. 535. A. L. R. 884; 9 B. 1 A. L. notes, 9 Ann. 1235; Cas. Cas. rights, Ann.. Nature 41 L. R. 19150, 1026; A. 744. Cas. Ann. 709; 1913E, judgments Superior Court APPEALS from Napa Henry Judge. Judgment County. Gesford, C. S. F. va- affirmed; judgment No. F. S. cated, entry with accordance direction opinion Supreme with Court.
The facts are stated court. Appellants. R. P. Henshall for Riggins Samuel C. N. E. Wiel, Clarence and William Colby Respondent.
SHAW, sepa- C. J. The above-entitledcases were tried rately Separate judgments and at different times. were separate given appeals They were taken. both concern property rights, points the same and the involved closely simplify connected that it will so matters to decide opinion. will separately them one treat case respective *3 in the order of their numbers. F.
Case S. alleged quiet plain- to This is action the title the easements, against to claims of tiff certain the defend- appeal ants. This is in cause. the second The decision appeal first was by district court made reversing, February 26, 1919, judg- in part, previously by ment of nonsuit rendered the trial court. (40 App. 351].) 68 Pac. trial Thereafter a new was in given had the court below and was plaintiff. Grange defendants appeal. Swett Grange, by answer, The defendant disclaimed in- all up complaint. terest the matter set joined appeal. loss he why to understand But him, that, obvious as to it is must be affirmed. present appeal involved only The matters concern .the plaintiff Parker and the Swett. 7, 1890, May Thompson Chase, prede-
On or about parties, of both were cessors interest owners in common acres of land which the tenants to pertain. A here small and easements involved rising Creek, known northeasterly as Chase the hills the land near tract, enters comer and northeast March, 1922.] south- then westerly distance and
runs a considerable boundary thereof. southern the tract erly parties 1890, partition May 7, On was effected acres, containing was portion, southern by which the containing given Thompson, portion, northern and the boundary them was line between acres, to Chase. running through a line central 68y2 degrees east, to line, north on the western northerly line of boundary thereof. The eastern then owned tract was indented another tract parties. the south line along division line ran partitioned of this other tract and as a result the containing tracts, westerly parcel was cut into Chase designated easterly 1,” herein as “tract acres, designated 2.” There acres, herein “tract parti- space them. twenty chains wide between party conveyed whereby deeds tion was thereby apart set the other his interest question now in forth in other. The easements were set Thompson they were reserved the deed of par- as burdens servitudes the northern appurtenant cel, 1, and as easements southern number, They were five but the easements parcel. 3 and now those numbered which are as involved are follows: use, appropriate, divert, take,
3. “A lead otherwise, carry away, pipes one-half of the waters may flow, flowing or that in the stream on said premises, where be taken or near the the waters pipes leading partially now diverted in stream are premises”; dwelling on said pipe for a line way
4. “The water from over, across, where said waters diverted *4 premises adjoining to the said in and tract pipe laid as not south, such to be so to interfere on the of said proper premises, cultivation and also with the enter in and to said premises all times right repairing viewing, changing, preserving purpose laid, making so and pipe may be that and maintain- division said water. ing proper the water point diversion mentioned corner northeast number 3 is near the situated tract 1, now owned Swett. The third reservation, may noted, reserved appurtenance as an to the conveyed tract right him, Chase to take and use “one-half of flowing the water or that flow” in Chase Creek point at said diversion designated on tract the record as point.” the “1890 declares that plaintiff, against.the defendants, is right the owner of the to have Chase Creek naturally flow and undiminished to said of diversion and to take out at that one-half of the water thereof flowing there carry away pipes or otherwise and same, right and that said appurtenant to “and parcel plaintiff’s land; of” also right way owner of a pipe-line, for a to be laid along the bed of Chase Creek from said plaintiff’s diversion to right tract of and of the enter on view, land examine, change, Swett repair, or preserve pipe laid, proper so and to make and maintain a rights division water, which are also declared to be appurtenant land. appellants provisions claim that these partition granted
assume that deeds an contrary interest this to the previous appeal decision of the district court of which has now law the case. We do so become the opinion. previous shows understand That designated acquired after being lying 3,” land between tracts “Tract record as partition, and it him declares that set off to convey anything but a no intention the deeds show be obtained on the which could use of the water place original called of land at the half of the northern one-half referred to diversion, the northern point of would constitute 1. This being aforesaid flowing point, and in the water stream interest with the this is not inconsistent But there. obtained to be Thompson was so secured fact that the right in the stream part of the and a original undivided tract entire partition. Thompson was a half owner these before the they part. well as of the of which were partition being intention divide the land *5 479" March, 1922.] Parker v. Swett. severalty his due proportion off to each set them and in the riparian rights include the such intent would and effect the easements purpose The obvious stream. whereby means he Thompson provide was to reserved carry it the land his of the water and could obtain share riparian of his him for the exercise off to use thereon set accomplished riparian division right. It therefore rights by assigning party, one-half the water to in favor of the land of ease also a reservation Thompson to in the land to enable obtain ments Chase by talcing it out of the stream on the Chase use the land. Without reservations he would have had no necessary It was not point. of access at that to also ex pressly water, reserve the to one-half go Thompson, would land set off to with the which also the stream. insertion of the reservations was abutted recognition implied of that fact. The de also convey deeds transfer clares did not any rights pertaining in the water interest which also the stream runs. This must have been so, any neither since of them at that had time interest year Afterward, acquired tract 3. ownership and Swett owner But now the thereof. his against land, him, of that itself confers on other stream, except a reasonable water for to take beneficial on that land, and not elsewhere. think the objectionable present in its decree is not declaration point” the' water the “1890 to take say, riparian that is to “part and of” character. quantity judgment proceeds to declare the of water natural flow the stated
which constitutes to one-half is entitled thereof declares complaint half. No is made of other to the the defendant judgment. portion of the submitted After the trial to the had for decision it was closed and the reopened cause had at the been purpose appellants for the sole of intro request testimony identify ducing location additional quarry mentioned in the reservations and the roads allow refusing court did involved. The not err in here reopen subjects. the case discretionary, matter attempt and there is not even an to show an of discretion. abuse appellants injunction insist inter ference rights adjudged defendants plain with the *6 tiff contingent should have by been the construction plaintiff pipe-line of a point from the of diversion to plaintiff’s land. It pipe-line seems that no such has ever been rights, constructed. Inasmuch as are all these vested perceive we can why did reason not have the right'to enjoined declare that the should defendants from interfering if therewith. Even we assume that the plaintiff to take water from the stream does not come to him riparian right attaching as a to the land, only by but deeds, virtue of the reservations in the it would not be lost by disuse. Where rights or ease acquired by by grant, having ments are a reservation implied grant (Wood Boyd, effect of 145 v. Mass. 179 476]), N. E. the owner does not lose [13 them dis mere (Parker App. use. Swett, ; v. 40 74 Cal. Pac. [180 351] Worn, 944]; Smith v. 93 206 Howes, Cal. Pac. Currier v. [28 103 ; Petitpierre Maguire, Cal. 437 Pac. 155 Cal. [37 521] People 250 690]; Co., Pac. 172 v. Southern Cal. Pac. [100 ; 701 Copeland Pac. v. Fairview L. & Co.,W. [158 177] 119].). decree, however, Pac. declares appurtenant is not plaintiff’s that to his thereof, “part parcel” land, means that but is consequently, is, such, riparian that it is as not lost disuse. findings acquired appears Swett has
It from the 3, land known as tract situated between the two parcels conveyed by Thompson and that passes appel- question this tract. The stream the court should have decreed that the ease- lant insists that did not created the deed to Chase ments A pertaining 3. to tract sufficient affect the decree does contain such answer to notwithstanding pro- provision. Consequently, the other decree, visions of make a reasonable intervening use of the water on owner said subject reciprocal rights to the correlative and owners land on the stream. March, 1922.] judgment in affirmed, respond- case S. No. F. appeal.
ent to recover costs of
Case S. F. No. 9748. complaint alleged In plaintiff’s ownership this action aforesaid, the land him in claimed ease S. F. possession desig the defendants were the tract being nated the land situated two belonging designated land Swett, tracts of 1 and as tracts 2, respectively, as aforesaid, and that Chase Creek flowed across westerly defendant's tract 3 in a direction to the diversion, mentioned, hereinbefore said tract ’’ In the record before us this "1890 point, called the designation we will convenience use that hereafter. alleged It is owns the to have said naturally creek flow point, undiminished to carry and there to take one-half natural flow and thereon; same the defendants have diverted all the natural flow of the point, prevent creek so as above water from *7 coming deprive plaintiff down to said and of all they water, right use of said that claim to do so possession 3, reason of their of said tract and that said claim right. is without averring
The defendants answered that defendant Swett admitting 3, is possession the owner of tract that she is in of alleging same, possession and of the other defend- possession ants is subordinate to her and that their depend upon rights. her It also avers that the natural flow Chase Creek does not reach the 1890 and denies plaintiff any right that has to the water thereof at that point. findings plaintiff are to effect that is the owner alleged complaint;
of the land as that the defendant 3; is the owner said tract that Chase Creek £>wett running arising a easterly is natural stream of flowing 3 tract and across into the same the defendants’ point aforesaid; tract 1 to 1890 1 that said tract and plaintiff’s single 2 was, 1890, tract and said land a by Thompson undivided tract owned and Chase as tenants common, riparian that all of said undivided tract was Creek, partitioned that the same was between Chase partition Thompson, previously and stated, as that said 188 Cal.—31
482 predecessor, plaintiff’s pre and off to
deed there was set riparian right plaintiff’s served to said original tract, land a undivided and said had as predecessor granted of Swett that said deeds enjoying plaintiff, predecessor “as means of right riparian rights Thompson ranch, to exer of the riparian rights point” and to take at said said cise way together point, the water at with the pipe-line carry said water from that belonging defendant land; tract tract belonging Swett, plaintiff, are and said ranch riparian Creek; that as and all said Chase plaintiff, has, parcel of as tract to take reason owner tract creek, more, for but no able share the waters elsewhere, upon tract reasonable use not have no other claim that the defendants purpose, or because virtue of the waters creek possession ownership of tract 3. It was further their capable 3 mountainous declared that thereon, agricultural except pasture and that use, stock that can be on said tract use of said water pastured thereon; furnishing drinking water for stock against plaintiff’s protest, have defendants, also that deprived plain creek and the water diverted they point, and that have used tiff thereof at said manner on said tract 3. the same portions are material together aforesaid with the owner of the land aforesaid; Creek that defendant Swett in said Chase aforesaid, 3; that tract is the owner of creek;. and also the land of to take of the water of defendant Swett is entitled and no a reasonable share more for Chase Creek *8 any 3, purpose; said and elsewhere is supply for which it available there is to the period during the thereon pastured for stock year, that, except of each and January 1st June 30th plaintiff the defendant, entitled, as the parcel to have said creek flow natur- as his undimipished and there ally to said to take flow of natural for use on said ranch “the March, 1922.] Pabkeb quieted
Creek” and! that the title thereto he claiming enjoined adversely from the thereto. defendants although briefs, We appear learn from it does not the by record, that the diversion defendant on complained by plaintiff was of all the collection water of the stream at some on that tract and car- rying pipe in a down a concrete reservoir constructed defendant on his situ- on ated, storing and there for his own use on said tract any plaintiff. the exclusion of rec- use thereof indicating ord contains remarks and circumstances that this disputed by is true is not the defendant. infer from also the briefs that after the decision appeal 1919, on in February, district court the former
affirming plaintiff as to tract nonsuit began present quiet plaintiff’s action to title to the water of Chase Creek claims of the defendant based possession appealed their of tract 3. The in case S.>F. No. 9559 was rendered several before months present opening trial action. At trial judgment- plaintiff this action the offered evidence the roll previously claiming in the aforesaid, action as tried right to do so and to the same have admitted considered adjudication parties, stipu- as a final between the under a lation made the other action on May, as extending stipulation of a therein the time to file a tran- script appeal. stipulation portion referred foregoing “In follows: consideration for time, extension of pendency defendants waive appeal objection as an to use hereafter, whether judgment-roll action or in other, pres- At the time the trial of case above entitled.” action, 8, 1920, appeal ent referred October to was still objection undetermined. No the introduction judgment-roll and the same was received evidence. trial, however, the At close of the defendant, moved judgment-roll ground strike out the that it was not proof judgment, admissible as final or of the facts adjudicated thereby, yet final, because it had not become yet having therein not been decided. This motion was denied. In the course of trial the defendant offered flowing evidence to show the amount of water in Chase *9 Parker v. Swbtt. controversy. objected plaintiffs lands in Creek on the ground judgment on in that introduced evidence adjudicated matter, that could offer the defendant judgment. no evidence to in said contradict the declaration judgment purported That state the amount water flow- ing objection point. in sus- creek any was not introduce tained the defendant allowed to rulings assigned subject. These are evidence error. appellate Under courts cannot section 4% set article aside VI judgment constitution, rendered superior
in error the admission or in rejection court, upon in procedure, of evidence unless the examining par record, be of that the shall miscarriage complained of has resulted in a ticular error justice. respect facts which recited with we have controversy description of are the location and in disputed. not offered evidence to indicate defendant findings in that the facts stated other case judgment complaint, His in were true. declared flowing the¡ except quantity water creek, as to the respect altogether conclusions of law with found there and embodied judgment. While it is true question final at had become evidence, will final when was admitted be our time it affirming becomes final. At that time decision herein estoppel. will an adjudication and constitute will be circumstances, we unable to see how the all Under these miscarriage justice as to the ruling can result in a conclusion that lands of disputes She defendant. but riparian to the stream she does not plaintiff are through all in con dispute, runs the tracts that the stream period year it troversy, a considerable or that throughout course, fol and the conclusion its carries already that, have under matter of law. We shown lows as were, the lands S. F. No. all found case the facts riparian rights stream law, entitled to as matter mentioned, partition hereinbefore time of the partition was to divide the of that the effect portion and set off one-half of that original now tract to the tract which attached to said March, 1922.] v. * thereof. It
belonging to the therefore, S. F. No. clear, when the case final our affirmance becomes deny estopped will existence or extent of riparian rights clear that what she aforesaid. It is also flowing endeavoring to do the diversion of the *10 3 is same for use on some other tract. tract to collect the her The show that she does this for use on own tract briefs right disputed. and this is not This she has no to do against rights of the plaintiff. rights of ripa proprietors respect rian on same each with other, reciprocal. mutual and Neither has rights the whole stream as of Each the others. considering only thereof, entitled to Ms reasonable share rights rights others, and needs of the such must only exercised and the be use must be made rights to which riparian attach. Swett could not use her rights on or tract to feed increase her on tract using purpose to collect it on tract for all it on allowing tract without on his use rightful land, his water so share collected. We are of the should not be reversed be error, such, if cause of the it be the admission and con judgment-roll sideration of the aforesaid as determination riparian rights question. character of the water think, however, appear decree, per We that errors haps inadvertence, which, remain, if made allowed to substantially legal impair rights would the technical though defendant, importance. not otherwise of substantial It declares that is the owner of the naturally have the creek flow and undiminished to said and there to take “the natural flow” of said complaint creek. means entire flow. asserts This only one-half thereof. This evidently taking a mistake. Whether the was of the half be accomplished flow at a division of the all times or taking all division of the time of is not material to our Probably inquiry, and is not settled the decree. lat ter feasible method for so small a stream. The decree also declares, effect, the defendant any Creek, use the water cannot of, v. on 3 except supply drinking purposes water for pasturing domestic January animals thereon between 1st year. 30th do not think June that it province within the of the court thus to limit the use of water. The future cannot be foreseen. The owner 3 may any place use all the on that tract provided it is not consumed and is all returned the chan- nel passes boundary may before it the tract. There years pasturage be when on the tract will be valuable year judgment. other times than that allowed drinking use the water for should not forbidden be Any that event. the water tract 3 which made of prevents reaching consumes it and quantity should be limited to such reasonable just when taken with and needs connection belonging the other tracts to the defendant plaintiff, respectively. pleadings nor find- Neither ings present question and must remain decision adjudication necessity if future evi- arises. ever dence indicates that the beneficial use can be altogether trifling justify too *11 expense litigation, the its court, but is in of not the judgment, attempt the future a declaration forecast to that effect. necessarily
Prom what we have said the follows that judgment requires not defendant has modification,. The complained seriously of the features which have men- we tioned, and the Obviously, find we to be erroneous. appeal errors, particular was not taken to correct these judgment directing opinion we the that our judgment carry the modification below not should appeal. Indeed, costs of to us from the entire seems litigation in record both cases that this the result of persistent Swett, defendant, unfounded claim of' has all of water of the she take stream notwithstanding plaintiff, to the exclusion of effect and the attached flowing at thereto, whereby of the water the title one-half land. remained attached to the judgment P. No. is vacated with S. case judgment on the below enter a court directions to the Pabkeb March, 1922.] opinion. with this findings in accordance
pleadings and F.S. in case party costs Neither shall recover J., J., Wilbur, Shurtleff, J., Waste, Richards, J., pro tem., Lawlor, Sloane, J., J., concurred.
Rehearing No. 9559. denied S. F. filed denying rehearing
In a S. No. P. following April 1922: ap- Swett, THE COURT. has entirely The appellant,defendant plied rehearing in this case. She makes a objection judgment appealed new from. do We peti- ordinarily for the first time notice rehearing. solely depart tion for rule because our hope explanation that an view to the our effect may par- controversy prevent ties. objection judgment which, tois
awarding party flow of. “one-half of the natural proceeds point,” state, Chase Creek said 1890 in con- nection with number the- one-half allotted gallons, varying per from ten thousand to fifteen thousand constituting twenty-four specified during months, hours one-half, gallons per and fixes minimum of thousand nine twenty-four specified. The hours in the months not defend- suggests produce enough ant nature up quantities claims is so make these shortage such framed event adjudged daily judg- gallons number as stated notwithstanding deficiency, that, consequently, ment, get will less to which than one-half she the defendant justice entitled. *12 judgment. pur- understand the It does We do not so not In of nature. the forces port event to control supply the quantity designated, does flow natural nevertheless be entitled to the one-half of party will actually nature furnishes and flowing, quantity even 488 v. compels
if plaintiff accept quantity than the esti- less judgment. mated in the petition rehearing is denied. J., tem.,
Shaw, Sloane, Richards, C. J., pro Lennon, J., J., Wilbur, J., J., Shurtleff, Lawlor, J., and concurred.
In S. F. 31, 1922, on March the court modified judgment theretofore rendered as' follows: THE COURT. judgment It isordered that the of the su preme court set forth in March 24, filed amended to read as follows: judgment
It superior is ordered entered case S. F. No. striking 9748 he modified there- paragraph whole of numbered and amending paragraphs thereof, respec- numbered tively, so as to read as follows: 4. As of said tract Swett against plaintiff is entitled as to take of the water share, Chase Creek a reasonable but no than a reason- more share, upon able elsewhere, said tract for the reasonable use of said but pur- pose. Except paragraph 4) preceding (numbered as of,
stated, is the owner and his and he heirs and assigns right, par- are entitled the use of the Thompson ranch, cel flow to have said Chase Creek naturally point, plain- undiminished to said where tiff, ranch, for use has (%) one-half of said flow. take modified, party As so affirmed. Neither on this appeal recover costs therefrom. The court below going the remittitur to re-enter down of directed thus modified. Shaw, J., Shurtleff, J., Richards, J., pro tem., C. and Law lor, J., concurred.
Rehearing denied.
All Justices concurred.