Riverside Water Co. v. Gage

Beatty, C. J. — The plaintiff, a California corporation organized for the purpose of appropriating, owning, selling, and distributing water for the irrigation of lands, and for domestic and other purposes, brings this suit to determine the adverse claim of the defendant to a portion of the waters of the Santa Ana River, and for an injunction restraining the defendant from diverting water in excess of his right. The findings and decree of the superior court were in favor of the plaintiff, and the defendant appeals from the judgment, claiming that the findings do not correspond with the allegations of the complaint, and that they are insufficient to support the decree. The substance of the decree is, that the plaintiff is, as against the defendant, the owner and entitled to the use of all the water flowing in the Santa Ana River at the head of defendant’s ditch, during the irrigating season of each year, i. e., the months of May, June, July, August, and September, except 289£ inches, which the defendant owns and is entitled to use, and the defendant is perpetually enjoined from diverting or obstructing the flow past his ditch of any water in excess of that quantity. It is contended, in the first place, that this decree is erroneous because it goes entirely beyond the case made — 417 — by the allegations of the complaint. But we think counsel for appellant misconstrues the complaint. It alleges very clearly and explicitly that the plaintiff at the commencement of the action was, and for more than ten years prior thereto had been, the owner and entitled to the use of all the waters flowing in the Santa Ana River at the point where defendant’s dam was erected, in excess of two hundred inches measured under a four-inch pressure; that defendant claimed some estate, title, or interest in said waters in excess of said- two hundred inches, which claim was wrongful and unfounded, and that he had wrongfully and without right placed obstructions in the river which prevented the water from flowing down to plaintiff as it was of right accustomed to flow, whereby plaintiff had been deprived of the- use of upwards of four hundred and fifty inches of water. This is not a claim, as appellant’s counsel contends, that the plaintiff is owner and entitled to the use of four hundred and fifty inches, and no more, of the water flowing in the Santa Ana River at the defendant’s dam, but, on the contrary, is a claim of all the water flowing' at that point except two hundred inches, and that the defendant’s claim to any water in excess of that quantity is wrongful and unfounded. The allegation that plaintiff has been deprived of the use and enjoyment of upwards of four hundred and fifty inches of water by the acts of defendant in erecting the dam does not limit the plaintiff’s claim to that quantity, or in any manner qualify the allegation that it owns all the water in excess of two hundred inches. The issue tendered on this point was very clearly defined by the express admission of the defendant in his answer, that he did claim all the water flowing in the Santa Ana River at the point of his dam, and his allegation that his claim was lawful and valid. The findings of the court were exactly responsive to this issue, and the decree follows the findings. — 418 — The second point made by appellant is a refinement upon the first, and consists of a criticism upon the allegation and finding that the plaintiff was the owner of a quantity of water at the defendant’s dam. It is urged that an appropriator of water does not become the owner of the very body of the water as his personal property, until he has acquired the control of it in conduits or reservoirs of his own. (Citing Canal Co. v. Hoyt, 57 Cal. 46.) The proposition as stated is undoubtedly correct, and if in this case, as in the case cited, the plaintiff’s right of action depended upon its ownership of the corpus of the water at defendant’s dam as its personal property, the objection to the findings would be material.' But in this case the plaintiff is not seeking to recover the value of water which had become its personal property. It is seeking the determination of the adverse claim of defendant to the right to divert and use a portion of the stream, and the allegation and finding of ownership and right of use of all water flowing in the stream at defendant’s dam in excess of a certain number of inches is only a mode, and a very apt and sufficient mode, of designating the quantity of water to the unobstructed flow of which the plaintiff is entitled. The remaining points urged by the appellant all relate to various specific findings of the court to the effect that plaintiff has acquired by prescription certain rights as against the defendant, and the defendant is barred by certain sections of the statute of limitations from the assertion of any rights he may have had as a riparian owner. It is contended by the appellant that it is not enough to find that the plaintiff has acquired a prescriptive right to water as against the defendant, but that the facts must be found from which a prescriptive right arises; and it is further contended that although the bar of the statute of limitations may be pleaded by a bald — 419 — allegation that a claim or defense is barred by a particular section of the code, a finding upon such issue is not sufficient unless it shows the existence of every fact necessary to bring the party pleading the statute within the provisions of the section relied on. All this may be so in a case where the fact of prescription or the bar of the statute is directly and necessarily in issue; but if a fiuding on these points is not necessary to support the decree, and is not made necessary by the pleadings, as we think is the case here, the insufficiency of the finding becomes immaterial. The complaint in this case alleges ownership and right of use in a certain portion of the waters of the Santa Ana River, an adverse and unfounded claim by defendant to and a wrongful diversion of a portion of such waters. The answer admits defendant’s adverse claim, alleges that it is valid, and denies the wrongful diversion. The findings of the court are as broad and as specific on these points as the pleadings themselves, and contain everything necessary to support the judgment If the findings as to prescription and the statute of limitations are not sufficient as findings on those points, they may be left out of consideration, and still the judgment is sustained by the findings that remain. Of course, if there was anything in the findings in question inconsistent with those which are required to support the judgment, they could not be left out of consideration, but they present no such inconsistency. They also support the judgment, so far as they go, and the only fault found with them is, that they are not sufficiently specific. It may be contended, however, and no doubt that is the view of appellant’s counsel, that the matters alleged by the defendant in his answer rendered full and specific findings on those points necessary. The answer of defendant sets up the facts, among others, that the Santa Ana River rises in the mountains — 420 — and flows through a narrow canon for about thirty miles to the point where it debouches into the Ban Bernardino valley: that immediately below the point where it enters the valley its waters were diverted by appropriators, not parties to this suit, as early as 1857, who have ever since continued so to divert and use such waters; that other appropriators made subsequent appropriations lower down on the stream by means of ditches, and for purposes sufficient to more than exhaust its entire flow; that the plaintiff’s pretended claim is subsequent and subordinate to all these appropriations, and its point of diversion below them on the stream. To certain of these earlier rights by appropriation the defendant claims to have succeeded, and by reason thereof to have a right superior to that of the plaintiff. He plants himself, in other words, upon the ground of prior appropriation and prescriptive right. As to all these matters the findings of the court are full and specific. It is found that there were such earlier appropriations, that the defendant has succeeded to the rights of certain of the appropriators, and the water awarded to him by the decree is the quantity which it is found was appropriated by his grantors prior to the appropriation under which the plaintiff claims. There can be and there is no complaint that the findings are insufficient as to the rights of the defendant as an appropriator. But in addition to the appropriations upon which the defendant seems mainly to have relied, he did allege in his answer that he was the owner of a tract of land containing about twenty-six hundred acres, through and over which the Santa Ana River flowed for a distance of about three miles, and that most of the tract was susceptible of and would be benefited by irrigation. He did not, however, allege that he was entitled as a riparian owner to any definite quantity of water for the irrigation of his riparian lands, nor did he allege any facts show — 421 — ing or tending to show what proportion of the waters of the stream he could reasonably exhaust for that purpose. Nor is it alleged whether his land was above or below the point of plaintiff’s diversion. In short, we think the answer insufficient to raise any issue as to the extent .of defendant’s right as a mere riparian proprietor to divert and exhaust any portion of the waters of the stream. The finding on this point is as full and no fuller than the allegation, and does not conflict with the general finding in favor of plaintiff as to ownership of the water decreed to it. It was not necessary, therefore, to support the conclusions and judgment of the court, to find that the plaintiff had gained a prescriptive right, or that the defendant was barred of his riparian right; and conceding these findings to be as insufficient as appellant contends they are, we think the other findings cover all the material issues, and fully support the judgment. Judgment affirmed. McFarland, J., Paterson, J., Garoutte, J., and Sharpstein, J., concurred. Rehearing denied.