Spargur v. Heard

Belcher, C. — This action was brought to obtain a perpetual injunction restraining the diversion of water, and for damages. The court below granted the injunction, but without damages. The appeal is from the judgment, and rests on the judgment roll. 1. It is claimed by appellants that their demurrer should have been sustained, but we think it was properly overruled. The complaint stated a cause of action, and it was not ambiguous, unintelligible, and uncertain. The plaintiffs were husband and wife, but a husband may be joined as plaintiff with his wife in an action which concerns her separate property. (Calderwood v. Pyser, 31 Cal. 333; Corcoran v. Doll, 32 Cal. 83.) Plaintiffs alleged that Mrs. Spargur and her grantors had owned, possessed, and occupied the lands described for the periods named, and that she was then the owner thereof; and they deraigned her title to the ditch and water right from the first appropriator. This was sufficient. 2. It is contended that the court did not find upon all the material issues raised by the pleadings. Under this head it is urged that there was no finding upon the issue tendered by plaintiffs’ averment “ that the defendants threaten and intend, and unless prevented by the injunction of this court they will continue, to divert and obstruct the waters of said stream and prevent the same from reaching the lands of said plaintiff, and wholly deprive her of the use of said water; that the damage to said plaintiff for each day she is deprived of the use of said water is five dollars,” etc. It is said that this aver [228] ment was denied in toto; but the only denial as to the first part of it was, that defendants threaten, or intend, or will continue to do the acts complained of, “ except as of right they are lawfully entitled thereto.” This was clearly not a denial in toto, and yet the court found “ that defendants, and each of them, threaten and intend, and unless restrained will continue, to divert the waters from said plaintiff’s ditch and thereby prevent any portion of the waters of said stream from flowing through said ditch to plaintiff's said lands.” The court was not required to go further, and find as to the alleged resulting damages, for the reason that it was not necessary to allege or prove such damages. (Moore v. Clear Lake Water Works, 68 Cal. 146.) The finding was therefore fully sufficient. It is also urged that there was no finding as to the bar of the statute of limitations pleaded by defendants. But the court did find “ that plaintiff’s cause of action is not barred by section 318 of the Code of Civil Procedure, nor by section 343 of said code, nor by section 319 of said code, nor any of them.” The sections named are the only ones pleaded, and the claim that the finding should be disregarded because it is placed among the conclusions of law is without merit. (Burton v. Burton, 79 Cal. 490.) It is further urged that there was no sufficient finding as to the affirmative defense set up by the defendants, to the effect that they and their grantors had been the owners in fee-simple absolute of the land claimed by them since about the year 1869, and that Rutherford Creek—the stream from which plaintiffs claim the right to take the water — naturally flows across their land, and that their right to the full flow and use of the waters of the creek upon their said lánd is older and superior to any right of the plaintiffs thereto or to any portion thereof. It is said the court found only that defendants’ lands were agricultural in character, and that the said [229] stream in its natural channel flowed across the same and naturally irrigated portions thereof, but did not find how long they and their grantors had been the owners in fee-simple of the said land. But the court also found that'in the fall of 1873 and the spring of 1874 one Wood constructed a ditch'leading from Rutherford Creek to certain lands situated near the creek, and which he then occupied and claimed, and thereby appropriated and diverted to his lands twenty inches of the water of the creek, measured under a four-inch pressure, and thereafter continuously used the same for irrigating his lands during the irrigating season of each year, and for domestic purposes and the watering of stock during the whole of each year, until September, 1878, when be conveyed his lands, with the ditch and water right and privileges appurtenant thereto, to the plaintiff Mrs. Spargur; that she thereupon took possession of the land, ditch, and water right, and has ever since continuously claimed and used the water so appropriated for the same purposes as her grantor had used it, except when prevented from doing so by defendants and their grantors; and “ that for six years next succeeding said appropriation, such use of said water by plaintiff and her grantor was, with the full knowledge of defendants’ grantors, continuous, uninterrupted, peaceable, open, and notorious, under a claim of right adverse and in hostility to all, and particularly to defendants and their grantors.” These findings clearly show that Mrs. Spargur had acquired a prescriptive right to divert and use the twenty inches of water which she claimed. (Alta Land etc. Co. v. Hancock, 85 Cal. 219; 20 Am. St. Rep. 217.) And this being so, it was immaterial how long defendants and their grantors had owned their land in fee, and no finding as to that matter was required. It is further urged that there was no finding that plaintiff arid her grantor had paid all taxes levied and [230] assessed against the said ditch and water right; but it does not appear that any such taxes had been levied or assessed, and therefore no finding upon this question was necessary. (Heilbron v. Last Chance Water Ditch Co., 75 Cal. 117; Coonradt v. Hill, 79 Cal. 587.) 3. It is contended that the findings were not sufficient to justify the issuance of a perpetual injunction against defendants, for the reason that they were riparian owners on the creek, and the court only found that plaintiff had been damaged in the nominal sum of one dollar. The answer is, that it appears that the defendants’ lands were situated on the creek below the head of plaintiff’s ditch; that plaintiff had acquired a right to appropriate from the creek the amount of water claimed by her, and that the defendants had w'rongfully obstructed the flow of the water into her ditch, and threatened to continue to do so. Under such circumstances, plaintiff was entitled to an injunction, without proof of damages. (Moore v. Clear Lake Water Works, 68 Cal. 146; Conkling v. Pacific Improvement Co., 87 Cal. 296.) Some other points are made for a reversal of the judgment, but they do not require special notice. In our opinion, the proper judgment was entered, and we advise that it be affirmed. Foote, C., and Vanclief, C., concurred. The Court. — For the reasons given in the foregoing opinion, the judgment is affirmed. Beatty, C. J., concurred in the judgment.