Peregoy v. Mckissick, 79 Cal. 572

Peregoy v. Mckissick

79 Cal. 572 | Cal. | 1889

Lead Opinion

Beatty, C. J.

—There is the same fault in the entitling of this appeal as that noticed in case No. 12441, ante, p. 568. It should be entitled McKissick v. Peregoy.

This is an appeal from a judgment enjoining the defendant from interfering with a head-dam by means of which the plaintiff diverts water from a stream which flows in its natural course through the defendant’s lands. This head-dam and connecting ditch were constructed by plaintiff on the land now owned by defendant while the title thereto remained in the government, and they have been used to divert the water of the stream to lands belonging to the plaintiff. The defendant, owning land bordering on the stream below plaintiff’s dam, and needing the water for irrigation, has several times removed portions of the dam so as to cause the water to flow down to his own ditches, and claims the right to do so, and is insolvent.

But it is not found that plaintiff will be damaged by the acts done and threatened by the defendant except nominally. It is found that the water is useful and necessary for the irrigation of plaintiff’s land, and that he diverted it for that purpose; but it is not found that he has ever used it for that purpose, or that he has ever raised or attempted to raise any sort of crops on his *574land. For aught that appears, he has simply turned the water out of the stream and allowed it to run to waste. And when defendant turned it back into its natural channel through his land (where he did use it for beneficial purposes) it does not appear that plaintiff was at all damaged. The finding shows he was not damaged. Under such circumstances, a party claiming as an appropriator has no right to an injunction against a riparian proprietor, and the judgment is therefore erroneous.

Another point is also presented by the record in this case, viz., the validity of an appropriation not initiated by compliance with the provisions of the Civil Code as to posting and recording of notice. This question was decided in the case of Necochea v. Curtis, and a rehearing afterward granted.

As counsel in this case have not argued that question, and its decision is not necessary to a disposition of his appeal, we shall leave it untouched until we come to reconsider the case of Necochea v. Curtis.

For the reason above specified, the judgment is reversed, and cause remanded.

Works, J., Sharpstein, J., Paterson, J., and McFarland, J., concurred.

Concurrence Opinion

Thornton, J., concurring.

—I concur, and will add that ifj the plaintiff has never used the water for any-useful or beneficial purpose, he was never an appropriator, arid if he has ever used it for the purposes above mentioned, and then ceased to use it, his right has ceased. This is so by both statute (Civ. Code, sec. 1411) and the law fixed by the decisions in this state made before the statute was enacted. If he ever appropriated the water, or his right has ceased by non-user, we cannot see what right he has against the defendant, a riparian proprietor, to continue his diversion and waste of the water.