Willits Water & Power Co. v. Landrum (38 Cal. App. 160, 1918)

BURNETT, J.

The appeal is by the plaintiff from a judgment in favor of the defendant decreeing that he was entitled to divert and devote to beneficial use the natural flow of a stream of water known as “Southard” Creek, in Mendocino County, to the extent of two and one-half miner’s inches measured under a four-inch pressure, and also that he was the owner of a certain flume and ditch and a right of way across plaintiff’s land for a diverting system for the appropriation of said water.

The main controversy is as to the sufficiency of the evidence to support the material findings of the court, the claim of respondent being that he proved a prescriptive title. That a quantity of water had been for many years diverted from said creek and conveyed through a ditch and flume across plaintiff’s land and used upon the land of defendant for domestic purposes, and for the irrigation of a small tract of land, is abundantly shown and, indeed, is not disputed by appellant. It is, however, the contention bf the latter that the use originated and continued in permission or license, and not under a claim of right, and, therefore, could not be held to be adverse.

The witness, W. F. Van Bibber, testified that he first became acquainted with the ditch and flume “about 1881,” but that he could not tell whether the water ran at that time to the Landrum place but that it was running in that direction. In 1902, when the plaintiff’s water system was constructed and established, the witness was living on the old Southard place, and he testified that “we used the water of Southard Creek right along all the time. We used the same ditch and flume that is there now. Well probably it ha's been overhauled, but then it came from the same direction. . . . When I was on the Southard place and Mr. Sherman was on the Landrum place he irrigated the same as we did, we tool? the water from about you know couple of days apiece. There were four families of us engaged in this ... We different people who were using the water at that time had a kind of an agreement between ourselves, simply a neighborly proposition. We tried to make what water we had go as far as it would.” There is nothing in this testimony to show that he asked permission of appellant or of anyone to use the water, or that he recognized the. authority of anyone, either before or after the contention of appellant arose, to question his right to the use of the water. The only fair inference from his testimony is that he used the water as though he owned it, and the only matter of argument was as to its division among the neighbors. It is true he stated: “During this time that I was on the William’s place, the question arose between me and the company as to whether or not I had the right to take the water.” He was not interrogated, however, any further in reference to it and we must assume that when the question arose, he asserted his right, and that it was acquiesced in by the company.

Mr. Eugene McPeak, also, knew something of the situation in early days. His place was about a mile and a half from the Landrum place. He bought it in 1877 and he lived there until 1910. He testified: “When I moved on my ranch in 1877 there was a ditch or flume from Southard Creek running through the Southard ranch. The water was being conveyed to a mill at that time and the mill was situated on the east side of the road.” After stating that the mill was destroyed some years ago, he proceeded: “After the mill was destroyed the water was flowing in the flume, run right on and went past what we call the Landrum place. . . . While the mill was running they used the water on the Landrum place for irrigation. After the mill was destroyed they continued to use the water on the Landrum place. . . . While I was living on the place where I moved in 1877 to three years ago I cannot recall to mind any year the water was not used to some extent on the Landrum place.”

Mr. Frank Davis had lived in the neighborhood for twenty years, and he testified: “The first time I was on the water ditch across the road at the Landrum place was in 1874. The flume and the water as I remember it come in the ditch the way it is now and the flume come out of the ditch and run above the road. . . . After the mill was discontinued, I know that water ran on to the Landrum land east of the house and down north of the house. I do not know whether or not water was used on the Landrum place for domestic purposes but they were using it for irrigation, that is using it for irrigating gardens and stuff they had there. . . . Water was always flowing in that ditch coming out of the creek to my memory since I first seen it. ... I don’t remember I was ever there but what the water was there in that ditch, used the water all through there all summer, don’t remember of ever finding it when the water was not there.”

A.