Southern Pac. R.R. v. Dufour

Garoutte, J. This is an action to restrain respondent from unlawfully diverting certain waters claimed to have been appropriated by appellant under the provisions of the Civil Code. Judgment went for defendant, and this appeal is. prosecuted from the judgment and order denying the motion for a new trial. The Endings of the court are not attacked, and the facts of the case may be briefly stated as follows: In the year 1888, Du-four acquired title to section 36 of a certain township, and range situated in Kern County. Prior to this event said realty was the property of the state. Upon this tract'of land was a small tract of marsh or swamp land, in which the water came to the surface of the ground. As early as the year 1880 plaintiff made an excavation or reservoir some Eve feet in diameter in this marsh, in which the water collected, and from thence it was transferred in a small underground pipe a mile or more distant to the railroad station of Cameron, where it was applied to the various uses of plaintiff. In the year 1886, plaintiff, in pursuance of sections 1410 et seq. of the Civil Code, posted a notice at the said reservoir, claiming five inches of said waters measured under a four-inch pressure; and it is under these acts and the foregoing provisions of the Code that plaintiff’s rights are based. Prior to the commencement of this action, defendant made a tunnel into an adjoining hill, and dug a ditch in connection therewith (said acts being done upon his own [617] land), for the purpose of procuring water for irrigation and for his sheep. The action of defendant resulted in plaintiff’s reservoir becoming dry and the water collecting in defendant’s ditch, and this litigation followed. The court found “ that said spring (reservoir) in the complaint described was, on the seventh day of October, 1886, and for a long period of time prior to that date, and ever since such date has been and now is, fed solely by percolating waters which seep into said spring from the swamp or wet land surrounding the same, and such spring is not and never has been fed by any running stream of water.” The finding is amply supported by the evidence, which clearly indicates that no stream of water runs into or from the bog or spring other than is conveyed away through plaintiff’s pipe line. In the face of these facts, it is entirely immaterial whether the steps taken by plaintiff under the statute law of the state were strictly within the provisions of that law or not. There was no water at the spot to which plaintiff could acquire the right of use, either by statutory appropriation or adverse user, and this principle is supported by unquestioned authority. In Trustees of Delhi v. Youmans, 50 Barb. 316, the matter is exhaustively discussed, and Justice Boardman there said: “The law controlling the rights to subterranean waters is very different from that affecting the rights of surface streams. In the former case the water belongs to the soil, is part of it, is owned and possessed as the earth is, and may be used, removed, and controlled to the same extent by the owner.” After citing many authorities, the opinion continues: “ These and other cases establish the principle that no action will lie for injuries caused by cutting off subterranean channels percolating the soil or running through unknown channels and without a distinct or defined course.” The facts of this case place it entirely without any recognized exceptions to the foregoing rule, and bring it directly in line in all essential particulars with Hanson v. McOue, 42 Cal. 303, 10 Am. Rep. 299, where the principles declared in the case of Trustees of Delhi v. You618 mans are fully adopted; and this court went to the extent of saying, that, in the absence of any proof that the spring was supplied by any well-defined flowing stream, it would be presumed to be formed by the ordinary percolation of water in the soil. In this case, the court having found that the alleged spring or reservoir was fed by percolating waters alone, and the evidence disclosing that no stream of water whatever flowed naturally from the marsh or spring, it is apparent that title to the land carried title to the water, and plaintiff’s acts of attempted appropriation created no right or easement, for no water was present which could be the subject of appropriation. In addition to a specific denial of the allegations of the complaint, by way of a special defense defendant set out that the water flowing from said spring formed a natural watercourse through defendant’s land, and that he was entitled to the use of said water as a riparian owner. At the close of defendant’s case he withdrew his special defense, and! this action of counsel is assigned as error. Upon an examination of the record, we find no objection or exception taken to the withdrawal of this special defense from the answer, and hence do not perceive how it can be a proper subject for review. If plaintiff, relying on the allegations of the defense to cure a defective complaint, was surprised and misled by such action of counsel, upon a proper showing he would have been entitled to a continuance in order that he might amend his complaint or procure additional evidence, but there is nothing to indicate that he applied for such relief. The complaint states that on the seventh day of October, 1886, the plaintiff appropriated the waters flowing into and from a certain spring (then follows the location of the spring), to the extent of five inches measured under a four-inch pressure. The answer contains a specific denial of this allegation, and the court found as a fact, and in the exact words of the complaint, that plaintiff did not, on the seventh day of October, 1886, appropriate the waters flowing into and from a certain spring (then follows the location of the spring) to the extent of five [619] inches measured under a four-inch pressure. If the denial in the answer had been couched in the language of the finding, it would have fallen before objection, and the finding must likewise fall. It is evasive, and passes upon no material facts involved in the case. The pleadings presented the issue whether or not there was an appropriation of water. That was the ultimate fact, the heart of the case, and in response to that issue the court found that there was no appropriation of water upon the seventh day of October, 1886, to the extent of five inches measured under a four-inch pressure. The date of the appropriation and the amount of water appropriated were immaterial, and we are thus left without a finding as to the ultimate fact. Can this judgment stand, in the absence of a finding upon the question of appropriation ? It was held in Windhaus v. Bootz, 92 Cal. 623, that where the finding of a certain fact necessarily controlled the judgment, the omission of the court to find upon other issues would not constitute reversible error, for findings upon such issues might be placed to the credit of the appellant and still the judgment stand. Upon this principle of law, respondent contends that the court having found that the spring was sustained by percolating waters only, other findings became unnecessary; for under the authority of Hanson v. McGue, 42 Cal. 303, 10 Am. Rep. 299, such fact controlled the judgment in favor of respondent. Considered alone, this finding is not sufficient to accomplish such results, for it is not inconsistent with the fact that a natural stream of water flowed from the spring, which might be the subject of appropriation. But the finding that the spring was fed by percolating waters, taken in connection with the additional finding that the digging of the trench or ditch by defendant was for useful purposes, upon his own land and above the spring, inflexibly directs the course of the judgment to the respondent. Conceding that a natural stream of water flowed from the spring, which under Ely v. Ferguson, 91 Cal. 187, could be the subject of appropriation, still that fact did not create any barrier which would [620] prevent respondent from digging trenches upon his own land, even though the digging of such trenches resulted in the destruction of the spring as a source of water supply. If respondent’s alleged diversion had been located by appellant at a point below the spring and upon a natural stream flowing therefrom, then the principle of law involved would have been entirely different from that now presented. The land where respondent made his excavation was his own land, and the spring was situated thereon, although that fact is immaterial; for, as Justice Crockett said in Hanson v. McGue, 42 Cal. 305, 10 Am. Eep. 292, “if the plaintiff was the owner of the Dixon spring, with a consequent right to the use of all of its waters, the defendant would have the clear right to dig upon his adjoining land for any useful purpose, notwithstanding he might thereby divert the percolations, and thus destroy the spring.” The digging of respondent was upon his own land; he interfered with no natural stream of water, either surface or subterranean; the waters were percolating waters, a part of the soil itself, and of which the owner had the free and absolute . use. Under such circumstances, the owner of the land cannot be disturbed. This principle is settled law. {Hanson V. McGue, 42 Cal. 305; 10 Am. Rep. 292; Mosier v. Caldwell, 7 Nev. 102; Delhi v. Youmans, 50 Barb. 316; Angell on Watercourses, sec. 112.) It follows that the findings are sufficient to support the judgment. Let the judgment and order be affirmed. Harrison, J., DeHaven, J., and Beatty, C. J., concurred.