113 Cal. 182 | Cal. | 1896
The plaintiff is the owner of a rectangular tract of land, having an area of one thousand acres, lying to the south and west of a larger tract belonging to the defendant", Muscupiabe Land and Water Company, and through both of these tracts of land there flows a stream of water known by the name of Devil Canyon creek. This stream has its source in the mountains north.of the defendant’s tract, and flows through the canyon in a southerly direction, and thence southerly and southeasterly through the defendant’s tract of land to the north line of the plaintiff’s tract, which it crosses in a southeasterly direction and again enters the defendant’s tract. The length of its course through the defendant’s land before it reaches the plaintiff’s land is fifteen thousand five hundred and seventy feet, and its course southeasterly across the plaintiff’s land is three thousand two hundred feet in length, when it again enters the land of the defendant, through which it flows for thirteen thousand four hundred and fifty feet. Of the lands of the plaintiff only the northerly two hundred and forty-five acres are within the watershed of this stream and riparian thereto. With irrigation this land can be made productive, but without irrigation it is
“22. The most valuable use to which the water of said stream can be put is that of irrigation. The portion thereof that would be required for domestic and culinary purposes and for watering stock would not perceptibly diminish the volume of water flowing in the stream when there is sufficient therein to be available for irrigation.”
“23. The bed of said stream is sandy and porous, and the air in that locality is, during the irrigating season, dry and hot. The quantity of water usually flowing in the stream varies greatly in different years, and in different seasons of the same year, and considerably in different portions of the day, there being more flowing at night than in the daytime. The usual irrigating season lasts from June 1st to October 1st. During the winter season, and when the water is not wanted for irrigation, there is more water flowing therein than is needed or can be used by the riparian owners. After the water enters the lands of the Muscupiabe Land and Water Company a large portion thereof
“24. In a season of average rainfall, when there is no diversion of the water of said stream, the usual flow of the water therein at the point where it enters the land of said Muscupiabe Land and Water Company, and at the point where it enters the land of Wiggins, computed in miner’s inches, measured under a four inch pressure, is as follows: ‘From July 1st to July 15th: At the north line of said company’s land, one hundred and fifty inches; at the north line of Wiggins’ place, fifty inches. From July 15th to September 10th: At the north line of said company’s land, one hundred inches; at the north line of Wiggins’ place, none. From September 10th to October 1st: At the north line of said company’s land, one hundred and fifty inches; at the north line of Wiggins’ place, fifty inches. When there is no more than one hundred inches at the point where said stream enters the land of said company, the same is all-taken up by evaporation and absorption, so that none of it reaches the one thousand acre tract of said Wiggins.’ ”
“25. The said Muscupiabe Land and Water Company has constructed and now maintains a dam across the said stream, and a ditch leading therefrom onto the land of the company aforesaid sufficient in size to carry all the waters of said stream. When during the irrigating season the water of said stream is all diverted in said ditch, until the bed thereof below the said dam becomes dry and the water is afterward turned again down and allowed to flow in said stream uninterrupted, it requires two days’ flow before any of it will reach the one thousand acre tract of Wiggins, owing to the absorption of water by the creek-bed and the evaporation by the heat and dryness of the air, and the said stream does not attain its full flow at the north line of Wiggins’ tract until about five days after it is so returned to said stream.”
“27. The amount of water required to irrigate such of the lands of the said company, and of said Wiggins, as is properly susceptible of irrigation, is the equivalent of a constant flow of one miner’s inch, measured under a four-inch pressure, to each five acres of said land.”
“28. Under all the circumstances and facts in this case, a reasonable and equitable division of said water between the said Muscupiabe Land and Water Company and the said Wiggins would be to allow to the said Wiggins the full flow of the stream, uninterrupted and continuously, for eight days out of each forty days, beginning April 1st of each year, upon said one thousand acre tract, and to allow to the said Muscupiabe Land and Water Company the full flow of the stream during the remaining portion of each period of forty days; provided that, when there are no more than one hundred miner’s inches of water, measured under a four-inch pressure, flowing in said stream at the point where it enters the land of the said Muscupiabe Land and Water Company, the said company should be allowed to divert all the water of said stream, and to continue so to divert the same until there are more than one hundred inches aforesaid flowing at said point.”
The conclusions of law and the judgment thereon follow substantially the twenty-eighth finding, and by the judgment the plaintiff is enjoined from diverting the water of the stream for use upon any portion of his thousand acre tract, except the northerly two hundred and forty-five acres thereof, and the defendantis enjoined from diverting the waters of the stream for use anywhere, except upon its land lying to the north of a line drawn in prolongation of the north boundary of the
One of the grounds for a reversal urged by the appellant is that the judgment fails to provide for his right to use the waters of the stream for culinary or domestic purposes. The claim that this right is denied by the judgment is not sustained by the record. The judgment makes no limitation upon the use to which the water shall be applied by either of the parties, except that it shall not he used upon land which is not riparian to the stream. The principle contended for by the appellant is that the court had no authority to render a judgment by which he would be prevented from a continual flow of the stream for these purposes, and although he has cited expressions from some opinions in support of this contention, an examination of the cases in which they occur fails to sustain the principle im voked by him. The opinion of Mr. Justice Thornton in Stanford v. Felt, 71 Cal. 253, was not concurred in by any of the other justices; and in Alta Irrigation Co. v. Hancock, 85 Cal. 219; 20 Am. St. Rep. 217, it -was held that the plaintiff had no interest in the waters of the stream, and, consequently, the use to which the water might be applied by either party was not before the court for consideration. By the common law a distinction was recognized between the right of a riparian owner to the ordinary use of the water for supplying his natural wants for domestic uses and for cattle, and the right to its use for his artificial wants, such as pleasure grounds, manufacturing, etc., and although in the exercise of this right the superior proprietor might make any reasonable use of the flow of the stream for all domestic purposes, irrespective of any diminution caused thereby to the injury of an inferior proprietor, he could not exercise the right for any extraordinary use that would interfere with the rights of the inferior proprietors, or
The power of a court of equity to apportion the flow of water in a stream to the respective riparian owners, by periods of time rather than by a division of its quantity, so that each may have the full flow of the stream during such designated periods, instead of a portion of the flow during all the time, when the circumstances are such that a division in this manner would better conserve the rights of all the riparian owners, was fully considered and established in Harris v. Harrison, 93 Cal. 676. It was said in that case: “According to the common-law doctrine of riparian ownership, as generally declared in England and in most American states, upon the facts in the case at bar, plaintiffs would be entitled to have the waters of Harrison canyon continue to flow to and upon their land, as they were naturally accustomed to flow, without any substantial deterioration in quality or diminution in quantity; but in some of the western and southwestern states and territories, where the year is divided into one wet and one dry season, and irrigation is necessary to successful cultivation of the soil, the doctrine of riparian ownership has by judicial decision been modified, or rather enlarged, so as to include the reasonable use of natural water for irrigating the riparian land, although such use may appreciably diminish the flow down to the lower riparian proprietor, and this must be taken to be the established rule in California, at least where irrigation is thus necessary.,, In an arid country, water for irrigation may become a natural want of man, as exigent as when needed for domestic purposes, since without it vegetation would cease, and the sources of life be indirectly destroyed. (See Evans v. Merriweather, 3 Scam. 496; 38 Am. Dec. 106.) When, as in the present case, a stream, instead of increasing as it goes towards the sea, •constantly diminishes, until it finally disappears or
The evidence before the superior court has not been brought before us, and we must assume, not only that •the findings of fact made by that court were sustained by the evidence, but also that the findings which were made contain all the facts which the evidence before the ■court authorized it to make. As the appellant must show that the court below has committed error, it was incumbent upon him, if he would controvert the correctness of its judgment by reason of its failure to make suitable provision for his domestic needs, to show that he offered evidence upon this issue, and that the court
The record does not disclose the amount of water flowing in the stream at any other dates than between the 1st of July and the 1st of October, or that there is at any time a flow1 of more than one hundred and fifty-inches at the point where it enters the land of the defendant; and, although it may be assumed that the loss by absorption and evaporation is greater during the summer than in the winter, the only finding upon this point is that when there is no more than one hundred inches at the point where the stream enters the land of the defendant, the same is all taken up by evaporation and absorption, so that none of it reaches the thousand acre tract of the plaintiff, and that in a season of average rainfall this is the actual loss between July 1st and October 1st. The loss by absorption and evaporation is so great that, without any consumption by the defendant, for any purposes, only fifty inches would reach the land of the plaintiff at any portion of this period. How much of this fifty inches is consumed or required by the defendant for domestic purposes or natural wants is not shown, but it is consistent with the findings of the court to assume that it appeared from the evidence before it that the necessities of the superior proprietor for domestic uses were such that by giving him the right to a continuous flow none of the water would reach the land of the plaintiff during the irrigating season,
It is further contended by the appellant that, inasmuch as the court finds that he has cultivated eighty-five acres of his irrigable land, and that the respondent has cultivated only thirteen acres of its irrigable land, and, as it does not appear that the respondent intends in the future to irrigate or cultivate any greater area, the judgment should not have given the defendant the use of the greater portion of the water. The right of a riparian owner to the use of the water is not, however, measured by the amount which he actually uses, and it is not to be assumed that the same amount of land will be culti
The appellant also objects to that portion of the judgment which provides that the defendant may provide means for carrying to the north line of the plaintiff’s land, without diminution, all of the waters of the stream in excess of one hundred inches which shall at any time be flowing at the point where the stream enters the land of the defendant, and that, if it shall elect to do so, it shall have the right, at any of the times during which the plaintiff is by the judgment entitled to the use of the waters of the stream, to deliver said excess to the plaintiff at the northerly line of his tract, and that, if it shall so deliver said excess to the plaintiff during the time it shall make such delivery, it shall have the right
The judgment is affirmed.
McFarland, J., Garoutte, J., Van Fleet, J., Temple, J., and Henshaw, J., concurred.