In this аction the court below adjudged that the plaintiffs, as tenants in common, have the right to divert and use the water of the Santa Paula creek, in Ventura county, to the extent of six hundred inches, measured under a four-inch pressure, subject, however, to the superior right of defendant to divert and use fifty inches of the water, measured, as aforesaid, during “onе day of twenty-four hours in each week, from Saturday afternoon to Sunday afternoon,” and subject to the further right of defendant to take one-half an inch of water in constаnt flow, to be used only within a specified section of land. All parties have appealed from the judgment. Plaintiffs claim that on the findings made by the court they should have- been awarded six hundred inches of water absolutely, and that the judgment should be modified accordingly; while defendant contends that he is aggrieved in several particulars, and that the judgment should be reversed in order that a new trial may be had.
The court found, among other matters, that in the year 1865 the defendant diverted by means of a ditch then constructed by him, having caрacity to carry one hundred and twenty inches of water, a part of the flow of said-creek (the course of which lay mainly through public lands of the general government), аnd applied the same to the irrigation of certain land which he held by mere occupancy, and to other purposes; he was then an alien and had not declаred his intention to become a citizen of the United States; on December 11, 1867-,
The first step toward acquiring the interest in the water of the creek now held by plaintiffs was a notice of the appropriation thereof, to thе extent of seven hundred inches, posted by certain persons with whom plaintiffs are in privity, in the month of August, 1867; this was followed forthwith by the construction of a system of ditches having capacity to carry six hundred inches, into which some water was turned in the year 1868; the use of the water drawn through such system
Upon the facts thus outlined the plaintiffs insist that their claim to six hundred inches of water is superior to any interest of the defendant, for the reason that, at the time of his appropriation, in 1865, he was an alien, and hence, they say, was not competent to appropriate the watеr; they found their argument on those provisions of the federal statutes restricting the acquisition of pre-emption and other rights in the public lands to citizens of the United States and thоse who have declared their intention to become such; the inference they seek to enforce seems to be that as Peralta, prior to December, 1867, сould not by reason of alien-age initiate title to government land, so he was incompetent to obtain, by appropriation, right to water flowing on such land. We cannot accede to this proposition; the silent acquiescence with which the government, prior to the act of Congress of July 26, 1866, regarded the appropriation of water on its lands, as well as the express recognition extended by that statute to rights so acquired, did not discriminate between Trojan and Tyrian—citizens or aliens; married women and minors were, in general, not competent to pre-empt land, but we have never heard that they might not make a valid appropriation of water; the tests of such appropriation were priority of possession and beneficial use (Maeris v. Bicknell,
In support of defendant’s appeal the principal grounds urged are, that the court erred in not finding the quantity of water originally appropriated by him; in restricting his use for irrigation to twenty-four hours on Saturday and Sunday of each week, in not finding as a faсt the quantity he may use for domestic purposes, and in restraining such use to certain limits—the said section 34. Although the court nowhere found the extent of defendant’s original appropriation, yet, as it did find that after 1872 he used no more than fifty inches for irrigation, and made such use only at certain times of the week, the omission was immaterial; all the water which he did not use was subject to the appropriation of plaintiffs; and this consideration disposes also of the objection to the action of the court in limiting defendаnt’s use of the water for irrigation to twenty-four hours of each week commencing on the afternoon of Saturday; he having ceased to use the water at other times, thе plaintiffs might lawfully take it at those times. (Smith v. O’Hara,
Vanclief, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment is modified by striking therefrom the portion limiting the place where defendant may use one-half-inch of water in constant flow, viz., the following words: “To be used only on section 34, township 4 north, range 21 west, S. B. M.,” and as so modified is affirmed.
Harrison, J., Garoutte, J., Van Fleet, J.