Promontory Ranch Co. v. Argile

McCARTY, J., alter stating the facts, delivered the opinion of the court. Appellants’ first contention is that the waters in. question, at the time they were diverted from their natural channel by David Farley, appellants’ predecessor in interest, and conveyed by him onto what is now known as the “Argile Ranch,” were open to appro-' priation, and that the evidence shows that a lawful appropriation of the waters was made by Farley. There is a conflict in the evidence respecting the use, if any, that was made by respondent’s predecessor in interest of the waters for irrigation purposes prior to 1894. The court found: “(4) That in the year A. D. 1882 the plaintiff’s predecessor in title and interest, the said McDaniel, entered upon said lands and built a house thereon, fenced in a garden spot, and plowed three or four acres of ground for a garden; that he built a dam in a semicircular form around on the easterly side of the spring, about 25 to’ 30 feet long, and from 2 to 2 1-2 feet high; that by said dam all the waters of said spring were diverted and used upon the garden for the purpose of raising potatoes, cabbage, and lu-cerne, and were so continued to be diverted and used during the irrigating seasons of each year untilthe year 1887. ’ ’ There is a conflict in the evidence as to whether McDaniel used the water for the purpose of irrigation between 1882 and 1887, and to the extent as found, by the court, but there is abundant evidence to support the finding. The court not only confronted the witnesses while they were giving their testimony, and had an opportunity to observe their appearance and demeanor while testifying, but he made a personal examination of the spring, ditches and premises upon which it is claimed the water has been used. The court, in its oral decision, which is made a part of the record, made the following comment respecting the impressions created in the mind of the court respecting the credibility of certain witnesses, because of their appearance while on the stand and their manner of testi [406] fying: ‘ ‘ The witnesses offered by plaintiff to prove that the water was diverted and flowed exclusively upon the premises now owned by plaintiff from 1883 until defendants ’ predecessor in interest diverted the same impressed the court as being truthful men;” and, in referring to the testimony of the principal witness for the defense on the question as to when the defendants built the reservoir and first diverted the water, said that the testimony of this witness “was not very convincing to the court” — which shows that the court, in arriving at its decision, not only took into account the volume of testimony produced at the trial by each party, but also' the weight to which such testimony was entitled; and, as the preponderance of the evidence depends more upon the value of testimony than on the volume or quantity thereof, we are not prepared to say that the court erred in its conclusions in determining which side of the controversy on this point was supported by a preponderance of the evidence. This court, in a long line of decisions, has repeatedly held 1 that a finding of fact by a trial court will not be. disturbed unless it is clearly against a preponderance of the evidence and is manifestly against justice and right. The next contention of appellants is that, conceding respondent’s predecessor in interest appropriated the water, as found by the court, the evidence shows an abandonment of any and all right and title to- it for irrigation purposes that may have been acquired by such appropriation and use, and that in 1894 the water was again open to appropriation. The court found, and we think there is ample evidence to support the finding: “ (5) That in and after the year A. D. 1887 the plaintiff and its predecessor in interest diverted and used all the waters of said spring upon another portion of the plaintiff’s said lands and premises for the purpose of irrigating and making a meadow to • raise grass and pasturage for animals, and so continued to divert and use all of said waters for said purpose during several [407] years, until and including the year A. D. 1896, except that in the year 1891, 1892, and 1893, at times, the said waters flowed down the natural channel and onto a. swale or low place on premises now owned by defendants.” Prom 1891 until the commencement of this action in July, 1902, the record shows that but little use was made of the water in question by respondent for irrigation purposes. There is, however, evidence in the record which shows that in 1893 L. A. Nelson, who was respondent’s superintendent, turned the water from its natural channel onto the adjoining land of respondent for the purpose of producing grass and pasturage, and again turned the water for the same purpose in 1897. There is also evidence in the record that respondent’s ranch would be worthless without the water. It is a well-settled principle of law that in order 2 to constitute an abandonment there must be an intent to abandon, coupled with some external act of relinquishment by which the intent is carried out. 1 Am. and Eng. Ency. Law (2 Ed.), 1. In 1 Oyc. 5, the rule is stated as follows: “In determining whether one has abandoned his property or rights, the intention is the first and paramount object of inquiry, for there can be no abandonment without the intention to abandon. Thus, in jurisdictions recognizing the doctrine that title to land may be lost by abandonment, ceasing to cultivate land, or mere inaction and removal to another place, is not enough, without some act or disclaimer or other fact importing and showing a positive intention to abandon all claim of ownership. So the mere suspension of the exercise of a right, without evidence of the intention to abandon it, is not sufficient to destroy the right.” Section 1262, Revised Statutes 1898, provides that “the appropriation must be for some useful or beneficial purpose, and when the appropriate, 3 or his successor in interest, abandons or ceases to use the water for a period of seven years the right ceases; but questions of abandonment shall be questions of fact, and shall be determined [408] as are other questions of fact.” There is evidence in the record which shows that neither respondent nor its predecessor in interest, McDaniel, ceased to use the water in question at any one time for a period of seven years, and there is no evidence in the record, other than that of nonuser, which tends to show that it was at any time the intention of respondent or its predecessor in interest to abandon the use of the water for irrigation. Therefore, applying the foregoing rules of law to the facts and circumstances of this case, it is apparent that a case of abandonment has not been made out, as no intention to abandon its right to the water on the part of respondent has' been shown, except, as stated, the evidence of nonuser, which question the court found in favor of respondent. The judgment is affirmed, with costs. BASKIN, 0. J., and BARTOH, J., concur.