Paige v. Rocky Ford Canal & Irrigation Co.

The Court. We granted a rehearing in this case after affirmance of the judgment of the superior court, because we were in doubt whether there was not a fatal conflict in the findings as to appellant’s claim of prescriptive right to maintain the dam in the south fork of Pack-wood Creek, and to divert the waters of the creek through its canal. After the reargument, and a careful re-examination of the findings, we are satisfied that they are entirely consistent. They are not so clearly expressed as they might have been upon one or two points; but reading them and construing them all together, their evident meaning is, that, although the appellant main — 86 — tained a dam in the south fork of Packwood Creek for more than five years continuously prior to the commencement of this action, and also maintained its ditch during the-same period,-it did not maintain such dam or ditch under any claim of right adverse to the respondent’s right, and consequently that its continuous maintenance of the dam and ditch was no bar to the action. We are in all respects satisfied with our former opinion. Judgment and order affirmed. The following is the opinion above referred to, rendered in Bank on the 13th of July, 1889:— Works, J. This is a proceeding to enjoin the construction of a dam across and a diversion of the waters from a certain stream known as Packwood Creek. The complaint, after alleging the corporate capacity of the defendants and the ownership of the plaintiff and his grantors for ten years last past in and to certain real estate described, alleges “ that from time immemorial that certain natural watercourse called Packwook Creek has been accustomed to, and did, and does now, flow through said lands, moistening and irrigating the same, and furnishing its waters to the plaintiff and to his grantors for the irrigation of such lands, and for the use of their live-stock; that for the purpose of increasing the Sow of the waters of said stream,the plaintiff’s grantors, many years since, and long before any wrongful acts of defendant’s hereinafter set out, acquired the right to divert, from the St. Johns and Kaweah rivers, two large streams flowing from the Sierra Nevada Mountains, waters into the said Pack-wood Creek, and acquired the right of way to and the ownership of the bed and channel of said creek, and then, and ever since has, and still does, divert from said streams into the said creek, and thence carry down through the same to the lands of plaintiff aforesaid, for the irrigation of said lands hereinbefore described, a large amount — 87 — of water, all of which rights are now the property of plaintiff; that the plaintiff has now growing in and upon the lands aforesaid a large vineyard and a great number of acres of grain, which he is engaged in irrigating with the waters flowing in said creek, and which, without such irrigation, will dry up, die, and become lost and worthless to plaintiff, but which, by irrigation, is of great value; that the defendants have entered upon said stream, Packwood Creek, above plaintiff’s said land, and are now engaged in constructing a dam therein, with the avowed purpose of turning the waters thereof, which otherwise would, and of right ought to, flow down to plaintiff’s said land out of said creek, and into a ditch constructed by them, and that such entry and construction of such dam is without any right whatever, and is against the protest of the owner of the land through which the said stream runs; that if defendants are permitted to proceed to construct such dam, it will result in immediate and great and irreparable loss and injury to plaintiff, result in the loss of his vines and crops, and that such loss and injury will not be and is not susceptible of computation or determination in an action at law.” The defendants in their answer deny all of the material allegations of the complaint, and by way of a special defense allege, in substance, that certain of its predecessors and grantors acquired the right to divert and appropriate waters from St. Johns River, and to transfer the same to the Kaweah River, referred to in the complaint, which rights were then owned by said defendants, and that it obtained from said parties the right to use a portion of the waters so appropriated and •conveyed by them into the Kaweah River from said St. Johns River aforesaid, which rights said corporation still owns. “ That prior to the year A. D. 1887, said Pack-wood Creek united with and formed a branch of said Kaweah River; that during the winter season of the year 1867-68, by reason of the heavy freshets, the flood and — 88 — rains, which then occurred, the bed and channel of said Packwood Creek, for the distance of about one mile, commencing at the place where said creek united with said Kaweah River, became and were filled up with earth and debris, deposited therein by the action of said freshets and floods, and by reason thereof the water then and thereafter ceased to flow through the channel of said Packwood Creek, and said Packwood Creek then ceased to have, and ever since has ceased to have, any natural source of supply of water.” It is further avered, in substance, that while said Pack-wood Creek was so obstructed, the corporation defendant informed the grantors of the plaintiff, who then possessed all the rights and privileges of turning and eonArnying water through the channel of said Packwood Creek, that said corporation desired and intended to obtain from the owners of the land through which that portion of the channel of said Packwood Creek above referred to ran, the right to enter upon said portion of said channel, which was filled up as aforesaid, and remove the earth and debris therefrom, and appropriate and use the channel for the purpose of conveying water from the Kaweah River through said channel, and by means of a dam convey said water from said channel through a ditch to lands in the vicinity of Tulare City, in said county; and that said grantors of the plaintiff, with full and complete knowledge of their rights in the premises, and knowing that the defendant would have to expend large sums of money in order to remove said earth and debris from said channel, and construct said dam, for the purpose of deceiving said corporation defendant, and with intent to induce it to perform labor and expend large'sums of money in digging out and removing from the said channel of Packwood Creek the earth and debris deposited therein as aforesaid, plaintiff’s said grantor declared, stated to, and informed said corporation defendant that he did not claim, or intend — 89 — to claim or use, said channel of Packwood Creek, or the waters turned or conveyed therein by said corporation defendant, and that defendant could appropriate and use said channel for the purpose of conveying water as aforesaid; that, acting upon said statements, the defendant in good faith entered upon that portion of the channel of said alleged Packwood Creek which had been and was tilled up with earth and debris as aforesaid, and with the knowledge and acquiescence of plaintiff's said grantor, and by means of labor performed at great cost and expense of time and money, removed all earth, debris, and obstructions therefrom, and appropriated to its own use said channel for the purpose of conveying water from said Kaweah River, and turned and conveyed therein water from said Kaweah River, and at great cost and expense constructed a dam in the channel of said Packwood Creek, being the same dam complained of in said complaint, and at great cost and expense dug a ditch in said channel, immediately above said dam, to the vicinity of Tulare City, in said- county, where said waters, diverted from said Kaweah River, through said channel, were and are by means of said dam and ditch conveyed and used for the purposes of irrigation. “That during the time said labor of removing said obstructions, earth, and debris, and of building said dam and ditch, was being performed, and said sum of money expended for the same, plaintiff’s said grantor knew of said labor being performed and said money being expended, and did not object to the acts of said corporation defendant in that behalf, and did not claim, or pretend to claim, that any of said acts were interfering with, or would interfere with, or injure any of his rights to the channel of said creek, of the waters conveyed therein; and that if said obstructions, earth, and debris had not been removed from the channel of said alleged creek in the manner and to the extent they were removed, as aforesaid, no water whatever could or would flow from said — 90 — Kaweah River, or from any other source, into said creek, at ordinary stages of water, above the place where said, corporation had placed its said dam and constructed its said ditch.” It is further averred that the defendant corporation has been in the notorious, exclusive, peaceable, and continuous possession of said dam and ditch, and of said channel above said dam, adversely to the plaintiff and his grantors, more than five years immediately preceding the filing of' said complaint, under a claim of right adverse to the plaintiff and his grantors, and has, during all of said time, maintained said dam adverse to the plaintiff and his grantors, and during all of said time diverted said water by means of said ditch, adverse to the plaintiff and his grantors. The court, after finding the corporate capacity of the defendant, the ownership of the property, as alleged in the complaint, finds, in substance, that from time immemorial down to the year 1868, a well-defined, natural watercourse, known as Paekwood Creek, ran through the lands of the plaintiff, and irrigated his lands and furnished water for his live-stock and that of his grantors; that in the spring of 1868, by an unusual flood, the head of the creek became, by the action of the waters, so filled up with debris and sand that but little ■water ran into the creek, not sufficient to reach the lands of the plaintiff and his grantors, and the same ceased to be and was no longer a natural watercourse through said lands of plaintiff; that from the year 18G8 down to the spring of 1875 Paekwood Creek was a water channel into which and down which water ran in times of high water, but no water in its natural flow which entered into said creek reached the land of plaintiff aforesaid; that in the year 1875 plaintiff’s grantors turned a large amount of water from a stream known as the St. Johns River down into the Kaweah River, so as to bring it down to said creek, and thence through the — 91 — creek to the lands of the plaintiff, and acquired from the owners of the land through which they turned the water the right so to do, and also acquired, from the owners of the land through which said creek ran, the right to use the channel thereof for the purpose of conducting the water to said lands, where they used it for irrigation and for their live-stock to drink; that plaintiff’s grantors thereupon constructed a cut leading from the St. Johns River into the ICaweah River, which flowed down to and furnished water to Packwood Creek, and constructed a cut leading from Visalia Creek to Packwood Creek, and cleaned out said creek so it would carry all the Waters which they had turned into said creek, and the waters which came in their natural flow onto plaintiff’s land; and said waters flowed down and through the plaintiff's said lands in the channel of Packwood Creek, and were used by the plaintiff and his grantors; that, after the plaintiff and his grantors had so acquired the right to use the channel of said creek, and had so used it, the defendant, in the winter of 1875 and 1876, constructed from time to time dams in the north channel of said creek, and thereby turned away from said channel, by means of the dam, into the defendants’ ditch, the waters which the plaintiff and his grantors had turned therein, which dams were in each of said years torn down by the plaintiff’s grantors, and rebuilt by the defendant, and that the defendant did not, at any time, turn any water into the channel of said creek. After further finding the use made of the water by the plaintiff, and that the diversion thereof would cause him great, immediate, and irreparable injury, the court finds that the defendants notified the grantors of the plaintiff of their intention to clear out the channel of Packwood Creek, and to construct the dam as aforesaid, but finds expressly that the plaintiff’s grantors gave the defendants the privilege of turning out whatever water it turned into said channel, and no more; and that the — 92 — defendants never at any time turned any water into said creek after the year 1876, and that “ neither the plaintiff nor his grantors ever induced said defendant to expend any money or do any work on the channel of said-creek, nor ever informed the defendants that he, or they, did not claim, or intend to claim and use, the channel of said creek; and the only right which the defendant ever had to construct or maintain any dam in either of the channels of said creek was to turn out such water as it turned in, and the defendant, as aforesaid, never turned any water into said creek, but the plaintiff’s grantors, in the years 1877, 1878, and 1879, tore up the dams and obstructions placed in the north channel of said creek by the defendant, so as to let the water flow down to plaintiff’s land.” The court further finds that the corporation did expend twenty thousand dollars in cleaning out the head of the channel and constructing its dams, and that the plaintiff’s grantors knew of the expenditure of the money, but that the same was done under the aforesaid agreement as to the amount of water to be taken from the channel. The court found against the claim of the defendants that they had been in adverse possession of the channel and ditch for the term of five years. The court further finds that at the time the action was brought the defendant corporation was engaged in reconstructing its dam, the same having been removed by the plaintiff, the effect of which dam was to turn away from said creek into defendant’s ditch the waters which plaintiff and his grantors had turned therein, as well as the waters which came therein in their natural flow. As conclusions of law the court finds “ that the construction or maintenance of any dam in the channel of Packwood Creek by defendant is without right, and w'ill inevitably work great and continuous injury to plaintiff, — 93 — not susceptible of compensation in any action at law, and create endless litigation and judgment was rendered for the plaintiff accordingly. A motion for a new trial was made by the defendants, and denied, and the defendants appeal. The first contention of the appellants is, that after the year 1868 the creek in question ceased to be a natural watercourse, and that from that time the natural flow of the water therein did not reach the plaintiff’s lands, and that, therefore, no right of his was interfered with by their action. The evidence tends to show, and the court finds, that, prior to the year 1868, this creek was a natural watercourse, and that the waters flowed therein onto the plaintiff’s lands, but that in said year, by an extraordinary freshet, the head of the stream was obstructed by debris, and that from that time on only a small quantity of water flowed naturally in the stream, not in sufficient quantity to reach the plaintiff’s lands, but that water did reach his lands through the channel of the stream in extreme high water. In the case of riparian owners the rule has been held to be, that “ when a stream flowing through a person’s land is diverted into a new channel, either artificially or by a sudden flow affecting the rights of other riparian proprietors favorably, and the owner acquiesces in the new state of the stream for so long a time that new rights accrue, or may be presumed to have accrued, such acquiescence is binding, like a public dedication, and the stream cannot be lawfully turned to its former channel.” (Gould on Waters, sec. 159; Woodbury v. Short, 17 Vt. 386; 44 Am. Dec. 344.) So where the owner of the land has changed the course of the stream so as to affect other riparian proprietors favorably, and acquiesces therein for a sufficient length of time, he cannot claim the right to change the flow of the water to the detriment of such other riparian owners. (Ford v. Whitlock, 27 Vt. 265.) — 94 — But it seems to us that this rule, which applies to riparian owners, has no application to a case like this, where the defendants have entered upon the stream and claim to appropriate and divert the waters therefrom under the circumstances shown by the pleadings and the evidence. The fact that the plaintiff’s grantors had purchased the right of way through the channel of the creek to flow their waters brought to the same by artificial means did not, as claimed by the appellant, show that the stream was not a natural watercourse. The evidence tends to show that the channel of the stream was well defined, and that the waters had formerly flowed therein naturally down to the plaintiff’s land, and that it was only prevented from so flowing by the obstruction above stated. The right to such water as was brought into the stream by the plaintiff’s grantors might be, and we think was, held by an entirely different claim than that which entitled them to the natural flow of the water. (Hoffman v. Stone, 7 Cal. 46; Butte Canal Co. v. Vaughn, 11 Cal. 143; 70 Am. Dec. 769; Parks Canal Irrigation Co. v. Hoyt, 57 Cal. 46; Creighton v. Kaweah C. & I. Co., 67 Cal. 221.) But this would not affect the charac ter of the stream or the right to the water naturally flowing therein. Beside, respondent does not rely in his complaint solely on the ground that this is a natural watercourse, but on the further ground, which is found in his favor, that the flow of the -water was increased by artificial means, the right to which -was purchased and used by his grantors, and therebj’, in connection with the natural flow of the stream, the water was carried onto his lands. This being a stream in which water flowed naturally, tne fact that the defendants had turned other waters into it would not entitle them to take out more than they turned in. (Wilcox v. Hausch, 64 Cal. 461.) The right of the riparian owner to the natural flow of the water, under the circumstances, remained the same as before. — 95 — This case was here before, when it was held that the findings were too indefinite and uncertain to sustain the judgment, and the case was reversed on that ground. (Paige v. Rocky Ford C. & I. Co., 4 Pac. Rep. 1152.) This same point, and "the further one that the findings are contradictory, are urged now, but we think the findings are sufficiently definite, and that they are not so contradictory as to warrant a reversal on that ground. It is further contended that the evidence is insufficient to sustain some of the findings. Counsel for appellants review the evidence in their brief, and argue this point at length and with great earnestness, but the evidence on the several points discussed is clearly in conflict, to such an extent as must preclude us from entering upon the question. In pressing their views upon us as to some of these findings, the appellant contends that the respondent, like the appellant, was a mere appropriator of the waters flowing in the stream, and not a riparian owner; but the evidence sufficiently shows to the contrary as to a part of the waters-of the stream, and, as the evidence shows and the court finds that, although the natural flow of the water did not reach the respondent’s lands, it does appear that the waters did reach his lands in high water, and that the natural flow of the water to his place was only prevented by the obstruction at the head of the stream. There is evidence upon which the court was warranted in finding that the appellant expended its money in removing this obstruction, opening up the channel and constructing its dam, not for the purpose of using the natural flow of the water, but as a channel through which it might conduct the waters turned into it by the appellant. This being the case, the fact that the natural flow of water was increased by the removal of the obstruction, whereby the same would or might flow onto the respondent's lands, must be held to have accrued to his benefit, and not to that of the appellant, because it had — 96 — no right to the natural flow of the water under such circumstances. The very fact that the removal of the obstruction would increase the natural flow of the -water may have been an inducement for the owners of the land to consent to the use of the channel by the appellant for the purpose of flowing other waters therein. The same evidence and finding that the expenditures were made by the appellant for the privilege of flowing water turned by them into the channel of the stream, and not for the right to use the waters naturally flowing therein, or brought into the same by the respondent, show conclusively that the claim and holding of the appellant was not adverse as to any right asserted in this action. For the same reasons, the claim that the respondent was barred by the statute of limitations cannot be maintained. Certain rulings of the court upon the evidence are questioned by the appellant, but no material error was committed in any of these rulings. Judgment and order affirmed. McFarland, J., Sharpstein, J., Thornton, J., Paterson, J., and Beatty, C. J., concurred.