Full opinion text
BEATTY, C. J. This is a proceeding to condemn “all the estate, right, title, and interest” of the defendants in and to a tract of land embracing about three hundred and fifteen acres, for the purpose of enabling the plaintiff—a municipal corporation—to construct and maintain thereon the “headworks” of its projected system for supplying water to its inhabitants for private and municipal purposes." The defendants, appealing from a decree of condemnation and from an order overruling their motion for a new trial, not only allege numerous errors in the rulings of the superior court, but challenge the correctness of its findings of fact in many important particulars. With respect to these disputed facts it will be necessary to state the various contentions of the parties in discussing the particular legal questions to which they give rise, and, passing them over for the present, we,will, in this connection, only attempt to set forth the more general aspect of the case, as to which there is no substantial disagreement. The city of Los Angeles, at the date of the commencement of this action, June 8, 1893, contained a population of about seventy thousand souls and covered an area of about twenty thousand acres. At the date of the trial, in March, 1896, the population was upward of seventy-five thousand, having increased to that number from less than twelve thousand in 1880. This rapid growth of the city promises to continue, and the only source of water supply for its inhabitants and for municipal purposes is the Los Angeles river, which flows through the city from north to south. The principal source of the river above the city is the San Fernando valley. This valley, embracing a watershed of from four hundred and fifty to four hundred and ninety square miles, is almost completely inclosed by considerable ranges of mountains, rising in places to an elevation of over six thousand feet. The most important of these ranges is the San Fernando, which bounds the interior valley on the north. On the south and west it is bounded by the Cahuenga range, which at its northwestern extremity unites with the San Fernando. On the east the Verdugo hills are connected with the San Fernando range on the north, and, extending toward the south, leave a comparatively narrow outlet to the valley between their southern extremity and the eastern prolongation of the Cahuenga range. Through this outlet at the southeastern corner of the interior basin the Los Angeles river issues, flowing in an eastern direction parallel and close to the northern base of the Cahuenga range, until, having passed that obstruction, it turns to the south and flows through the city to the Pacific ocean. The interior of the San Fernando valley is a plain composed of detritus washed from the mountain sides, and having a moderate slope from the San Fernando range on the north toward the Cahuenga range in the south, and from the west toward the east. This portion of the valley—that is to say, the portion composed of material not in place, detritus washed from the mountain side—which, for convenience, may be called the valley proper, extends about twenty-four miles from east to west, and is about twelve miles wide at its widest part, embracing an area of about one hundred and eighty square miles. Its material is composed of bowlders, gravel, sand, and occasional masses of clay. The rainfall within the watershed of the valley is variable. When it is abundant, and the loose, porous material composing the valley proper is thoroughly saturated, the streams issuing from the rocky canyons of the mountains flow over the surface to the outlet of the valley and pass off as flood waters down the channel of the Los Angeles river. But this surface flow does not continue for any great length of time, and, under ordinary conditions, the mountain streams sink in the sand within a short distance of the mouths of the canyons, and no water appears upon the surface until it shows itself again in the Los Angeles river, where it takes its rise a short distance north of the Cahnenga range on the southern side of the valley proper. The land which the city seeks to condemn lies at the base of the Cahuenga range, in the narrow outlet of the valley. It is almost two miles in length from east to west, and averages a quarter of a mile in width. At its eastern end it is about a mile west of the point where the Verdugo hills make their closest approach to the Cahuenga range—the width of the valley proper at this point being about two miles. Where the land lies the width is from two and a half to three miles. The surface of the river where it flows out of the land in question at its eastern end has an elevation above the sea level of about four hundred and sixty feet, and is two hundred feet higher than the main portion of the city of Los Angeles. In ordinary seasons, after the flood waters have run off and the river has assumed its normal condition, the water rises to the surface at some distance west of the land sought to be condemned, and increases rapidly in volume as it flows toward the east. There is considerable difference between the estimates of different witnesses, but it may be said i-n general terms in this connection, where strict accuracy is not important, that the surface flow of the river, where it enters the tract in question, is about twelve hundred inches, miners7 measure, and that its volume is about doubled by the accessions it receives in passing through the tract. These accessions are of the character that would naturally be expected from the topography of the valley and the nature of the soil under and adjacent to the surface stream. The whole country on either side of the stream is found to be completely saturated with water—the plane of saturation near the open channel being slightly higher than the surface of the river, and gradually rising in proportion to the distance from the stream. From the sides and bottom of the visible stream the water percolates, or trickles, or gushes, according to the nature of the soil, whether fine and comparatively compact, or coarse and gravelly and more loose and porous. The plan of the city for utilizing the land which it seeks to .condemn is to drive a tunnel through it from east to west, a few feet below the bed of the river, and to extend filtration galleries. north and south from the tunnel in such number and at such places as may he iound best adapted to securing an ample supply of water. The plan also embraces a submerged dam and collecting chambers or reservoirs, but the main feature is the tunnel with its lateral galleries, from which0the water, draining and filtering out of the saturated soil, is to be delivered to the main supply pipe of the city, and thence to its dis-^ tributing system. The principal points of controversy between the parties are: 1. As to the existence of a well-defined subterranean stream by which the waters, or a large portion of the waters, resulting from the rainfall within the watershed of the San Fernando valley, are carried off through the pass between the Cahuenga range and the Verdugo hills; and 2. As to the rights of the city of Los Angeles, as successor to the Mexican pueblo, in the waters of the Los Angeles river. The claim of the plaintiff is, that the city has certain extensive rights in the stream over and above those of ordinary riparian owners, and that the stream itself consists not only of the visible surface flow of the river, but of the large subterranean flow slowly passing through the bowlders, gravel, and sand under and adjacent to the river. Both of these claims are disputed by the defendants, and out of this controversy arise most of the points to be considered in disposing of the appeal. As to the rights of the city as successor to the pueblo, the allegation of the amended complaint is, that ever since its organization the city has been the owner in fee simple of the exclusive right to the use of all the waters of said river, from its source to the southern boundary of the city, in trust for the public purposes of supplying the inhabitants of said city with water for domestic uses, and of supplying water for the irrigation of the irrigable lands embraced in the four square leagues of the pueblo, and for other municipal uses. And it is alleged that the defendants own the land sought to be condemned, subject to this right of the city to the waters of the stream. These allegations are denied by the defendants, and, in view of the issue thus made, the defendants, before the commencement of the trial, moved the court to stay the proceedings in the action until the determination of certain other suits then pending between the city and the defendants, in which the question as to their respective rights in the waters of the river was involved. The defendants also moved to strike out the allegations of the complaint setting up the claim of the city to the waters of the stream, contending that the city could not maintain a proceeding to condemn lands while asserting title in itself to that which constituted their chief value. These motions were denied by the superior court, and the exceptions to the rulings thereon give rise to the first point discussed in the briefs. Before taking up this point, however, it may be well to state the manner in which, by consent of the parties, the case was tried. It was stipulated that the court, sitting without a jury, should hear the evidence of the parties for the purpose of determining: 1. Whether the use to which the property was to be applied was one authorized by law and the taking necessary; 2. Whether the proposed plan was compatible with the greatest public good and least private injury; and 3. What was the nature and extent of the plaintiffs interest in the waters of the river. And these things being determined, that a jury should be impaneled to assess the amount of compensation to be' awarded to the defendants for the interest condemned. In accordance with this stipulation the court heard evidence bearing upon the three points mentioned, and at its close called a jury, before whom the trial proceeded upon the question of damages. During the progress of the jury trial the court made an oral announcement of its conclusions upon the issues submitted to its decision, but no formal findings were filed until after the jury rendered their verdict. The court, however, in charging the jury instructed them as to those matters so far as it deemed such instructions necessary. The consent of defendants to this mode of trying the various issues in the case was, however, given with an express reservation of their objection that the court had no jurisdiction in this proceeding to try any question of title in the plaintiff to the waters of the river, and they now contend that the superior court erred in refusing to stay the trial of the cause until the respective rights of the parties had been determined in other pending suits; and this upon the ground that a proceeding for condemnation is not one in which adverse claims of title can be adjudicated. This contention is rested upon the proposition that the proceeding, being statutory and special, must be strictly pursued, and, since the statute makes no express provision for litigating •a claim by the plaintiff to an interest in the property sought to be condemned, the court has no power to determine such claim, at least when contested by the defendant. But we think the statute does not require so strict a construction. The superior court is invested with a general jurisdiction of all special proceedings not otherwise provided for; and in conducting such special proceedings exercises its usual and ordinary powers in disposing of the issues which are necessarily involved. Among the matters which may be involved in any proceeding to condemn private property for a public use are adverse claims to the compensation to be awarded. In such proceedings the complaint must contain the names of all owners and claimants of the property, if known (Code Civ. Proc., sec. 1244), and all persons claiming any interest in the property, or damages, though not named, may appear and defend. (Code Civ. Proc., sec. 1246. ) And the court has power “to hear and determine all adverse and conflicting claims to the property sought to be condemned, and to the damages therefor.” (Code Civ. Proc., sec. 1247. ) These propositions are, of course, conceded by the appellants, but they contend that the right to set up and litigate adverse claims is confined by the very words of the statute to those who are defendants. It is true the express provision above quoted from (Code Civ. Proc., sec. 1247) applies only to the conflicting claims of those who are made, or who make themselves, defendants in the proceeding, but this is only because the interests of the defendants alone are to be condemned. The statute does not contemplate the condemnation of an interest which the plaintiff already has, or the payment of any damages except to compensate those whose property is to be taken away; and, therefore, the plaintiff can have no concern in the determination of “adverse or conflicting claims to the property sought to be condemned and the damages therefor.” But, although this provision of the statute has no direct bearing on the question here presented, it contains an express legislative recognition of the entire competency of the court to try and determine adverse claims to the property in a proceeding to condemn. The question, however, which we have to decide is this: Can a plaintiff who is already the owner of an interest in land secure the condemnation of outstanding interests in a case which in other respects is a proper one for condemnation? This is an important question, for it is apparent that such cases may frequently arise. Private property suitable and necessary for some lawful public use is often owned in shares by different persons, or subject to liens or servitudes, and the owner of a share, or an easement, or holder of a lien, may be the proper agent of the state for the exercise of its power of eminent domain. In such case, it is certainly desirable that the law should supply a convenient procedure by which he could secure exclusive control and ownership of the property upon payment of the value of the outstanding shares, or of the whole, less the amount secured by lien, or as diminished by the existing servitudes. The defendants do not seem to contest the proposition that our statute is adequate to the exigencies of such a case, but they contend that, when the interest asserted by the plaintiff is disputed, the proceeding to condemn must be held in suspense until, in a separate action, the respective interests of the parties are judicially determined. But why the necessity of such circuity of action? Both branches of the controversy would in any event be tried and determined in the same forum, and there seems to be no good reason why they may not be litigated in one action. Even if the adverse claim of the plaintiff were first determined in an action to quiet title, its subsequent assertion in a proceeding to condemn—whether admitted or contested—would be just as foreign to any express provision of the statute as if his right had never been determined. It follows, therefore, that the argument that the court can do nothing in these proceedings, except that which is in terms authorized by the statute, proves too much. It would not only debar the plaintiff from proceeding before his title had been adjudicated, but would debar him always. We see no reason for holding that a plaintiff is debarred from proceeding in such a case, nor can we see that the trial of all the issues in one action is attended with any special inconvenienee. In whatever mode the plaintiff’s interest in the property might be determined-—-whether in a separate action, or preliminarily in the proceeding to condemn, as was done in this case—the same consequences would follow; that is to say, the jury called to try the question of damages would require instructions as to the nature and quantity of outstanding interest remaining in the defendants, upon which to base an estimate of the damages, and the defendant would have the same remedy in case of erroneous instructions in either case. Considerations of convenience, therefore, do not seem to sustain the contention of appellant on this point. On the contrary, it would seem that very great public inconvenience might ensue if a plaintiff, asserting an interest in property which he seeks to subject to a public use, were obliged in every instance to prosecute to final judgment an action to quiet his title before he could proceed to condemn. And if he can commence the proceeding to condemn before his interest has been adjudicated, it does not seem that a denial of his interest should stop the proceeding, for it is in the same court in which that issue must be tried in any event, and to try it when it is first made is only to do that which is necessarily incident to a proceeding clearly authorized, and express authority to do anything always implies the power to do that which is necessarily incidental. If the views above expressed are in themselves reasonable, and if they embody a proper construction of the statute, they ought to prevail, even if opposed to previous decisions of this court; for no vested right can be violated or impaired by freeing a statutory remedy from inconvenient and burdensome restrictions imposed by a mistaken construction of the law. We are satisfied, however, that there is nothing decided in any of the cases referred to by counsel for appellants which is at all inconsistent with our conclusions. In Sacramento Valley R. R. Co. v. Moffatt, 7 Cal. 577, it was held, construing an act of 1853, that the commissioners appointed to assess the value of the property had nothing to do with the settlement of adverse claims, and that the persons in possession of the land condemned for a railroad were entitled to the whole assessed value of the land, as against third parties out of possession but claiming a superior title. This may have been a correct construction of the act of 1853, but the question here is different, and the law is materially different. In Spring Valley Water Works v. San Francisco, 22 Cal. 434, the act of 1853 was again construed, and it was again held that the commissioners appointed under that act to assess the value of the property condemned had nothing to do with adverse claims of ownership. That is a matter, it was said, to be determined by the court or judge before whom the proceeding was conducted, thus implying "at least that the court could do what in the former case it was held it could not do. Wilcox v. Oakland, 49 Cal. 29, contains a dictum in line with the decisions in the two cases last cited, to the effect that the commissioners appointed to assess damages have no authority to try questions of title as between adverse claimants—a proposition having no relation to the point in dispute here. In San Jose v. Freyschlag, 56 Cal. 8, which was a proceeding to condemn land for a street, the complaint alleged that the defendants were in possession and were the only owners and claimants of the land, and the answer set up the same fact. The jury, however, while assessing the damages at three hundred dollars, added a finding that defendants had dedicated the land for a street, and the court, adopting this finding, condemned the land, and awarded the defendants one dime by way of compensation. This judgment was reversed upon the sole and obvious ground that it was in conflict with the pleadings and based upon a finding without the issues, the court remarking obiter that if the plaintiff had alleged the fact of dedication it would have alleged itself out of-court, because it would thus have shown the existence, by virtue of the dedication, of the only right it could have acquired by the proceeding to condemn. San Jose v. Reed, 65 Cal. 242, was in all material respects the same as San Jose v. Freyschlag, supra, and was decided the same way. The correctness of these decisions, and of the dictum, added to the first must be conceded, but they are not in point. The pleadings in this case distinctly allege that the defendants have a certain interest in the lands to be condemned, but not the whole interest; they show, in other words, that there is something to be condemned, and what that something is, and clearly make the issue which the court is to try. San Francisco etc. Water Co. v. Alameda Water Co., 36 Cal. 639, was a suit by one water company to enjoin a rival corporation from carrying on a proceeding to condemn water rights as to which the plaintiff asserted a preferential right of condemnation. It was held that the action was well brought in the district court, because the existing statute had not empowered the county court to try the question of preferential right between two corporations seeking to condemn the same property. This was no doubt a correct construction of the act of 1858, but our present statute is different (Code Civ. Proc., sec. 1347), and if the question were the same it would require to be differently decided, but it is in fact a very different question. In Aliso Water Co. v. Baker, 95 Cal. 369, it was held upon special demurrer that the complaint was bad for uncertainty in the description of the interest sought to be condemned. The plaintiffs, in that case, endeavored to excuse the admitted uncertainty in the description of the water rights which they sought to condemn, upon the ground that they could not know the extent of such rights, and that it was, therefore, the duty of defendants to set out a certain description of what they claimed. Replying to this contention the writer of the opinion said that it necessarily implied the further ■contention that the defendants would be subsequently estopped from asserting any rights which they neglected to set out—a •contention which he held could not he allowed, because this proceeding (to condemn) cannot thus be converted into an action to quiet title. This single expression in the opinion is all that .appears to have any bearing upon the question here, and its bearing is only apparent, for, considered with reference to the point to be decided and in connection with what precedes and follows, it evidently means nothing more than this: that the plaintiff cannot, in the proceeding to condemn, as he can in an action to quiet title, throw upon the defendant the burden of pleading the particular rights to be litigated, under penalty of forfeiting all that he does not expressly claim; or, in other words, that the rule of pleading in these cases requires the plaintiff to set out an accurate and intelligible description of the property, or the particular interest in the property which, even in case of default, must be valued before it is condemned. We are in entire accord with this doctrine, and we think the plaintiff here has fully satisfied its demands. It has given an accurate description of what it seeks to condemn, and ought to pay for, before it takes possession. It claims an interest in the property, or an easement which it says diminishes the estate and interest of defendants, and all this is set out in order that the court and jury may know precisely what is to be considered in estimating the damages. We cannot, in the time at our disposal, undertake to review the numerous citations from the text-writers and the decisions cf other courts to which we have been referred by counsel. They undoubtedly contain expressions which in some instances are in conflict with the views above expressed, but we find nothing fairly and fully decided which cannot be reconciled with the conclusion we have reached, that the superior court did not err in overruling the motions to stay the proceedings and strike out. 2. The appellants contend, in the next place, that the superior court erred in overruling their several demurrers to the complaint as amended. The ground of the demurrers upon which they insist in their argument here is that the last amended complaint contains no certain description of the property which the plaintiff seeks to condemn, and they cite the case of Aliso Water Co. v. Baker, supra, in support of this contention. We do not think the cases are at all parallel. In the Aliso case the description was in the last degree vague and uncertain, but here the complaint shows that the object of the proceeding is to condemn all the estate and interest of the defendants in three hundred and fifteen acres of land, which interest is alleged to be a fee-simple estate, subject only to the asserted ownership by the city of the exclusive right to the use of all the waters of the river from its source to the southern boundary of the city in trust, et cetera. If the interest claimed by the city is set forth with reasonable certainty, it necessarily follows that the interest to be condemned is equally certain, and we see no difficulty in determining from the complaint what the city claims. It asserts a right to the use of all the waters of the Los Angeles river flowing through these lands paramount to and exclusive of any and all riparian rights in the owners of the lands. A great part of the argument of counsel for appellants is devoted to the question whether, in fact and in law, the city has any such right as she asserts, but this part of the argument seems to be out of place in considering the sufficiency of the complaint. The fact, that the claim of the city has not been, or cannot be, established does not prove that it has not been clearly stated, and that is the only matter to be considered in ruling upon the demurrer. 3. The next proposition of appellants is stated in these terms; “If the court had any power to determine these questions at all in this action, it was error not to determine those issues before-submitting the cause to the jury.” To speak of submitting this cause to the jury is an inaccuracy which tends to confusion. By agreement of the parties only one issue in the cause was submitted to the jury, viz., the question of damages. All other issues were tried by the court, and it was of no importance in what order they were decided, except in so far as a determination of one point was necesasry as a basis for the determination, of another. Undoubtedly, it was necessary that the jury should be correctly instructed as to the quantity and extent ox the estate and interest of the defendants in the land in order that they might correctly estimate its value, and since, from the nature of the rights in controversy and the agreement of the parties, that point was to be decided by the court, it was necessary that the jury should be informed before retiring to consider of their verdict what the conclusion of the court was, but that conclusion could be stated as well before as after the filing of formal findings of fact and conclusions of law. These were an essential preliminary to the judgment but not to the instructions to the jury, and, if the instructions actually given were correct and full, the fact that findings had not been previously filed is of no-consequence. Whether the conclusions of the court upon this point were sound and whether the jury were correctly instructed are points to be considered in another connection. 4. The next contention of appellants is, that there is no authority in law for the condemnation of these three hundred and fifteen acres in fee simple for the purposes for which the property is sought to be condemned. An ordinance of the city of Los Angeles, approved on the eighth day of June, 1893, is attached to and made a part of the complaint. By its first section it ordained that it was necessary that the land in controversy “be acquired by condemnation for the purposes of constructing headworks for a water system.” It will be seen that the purpose to which the land was to be devoted was not very definitely stated in the ordinance, but the amended complaint filed herein is somewhat more explicit and shows with reasonable clearness what the plan of the city is. The land is found to be saturated with water to within a few Jfeet of the surface. It is proposed to construct a subsurface .dam at the lower end of the tract. A subsurface dam, of course, would not have the effect of flooding the surface permanently, but it would permanently raise the plane of saturation. This being done, it is next proposed to tap this heavily saturated bed of sand and gravel by means of a tunnel connected with lateral galleries through which the water will be drained off and conducted to the supply pipes. In other words, the land is to be used as a reservoir, such as essentially it is, and none the less so because the water does not rise and stand above the surface. The evidence in the case shows that from one-fifth to one-third of the entire bulk of the material filling the valley below the plane of saturation is water. The land in its natural state, therefore, is a reservoir, and a subsurface dam is to be constructed in order to make it better serve the purposes of a reservoir. Such being the use to which it is to be devoted, the fee simple may be taken. (Code Civ. Proc., sec. 1239; Stats. 1891, p. 108.) As to the necessity of taking the whole three hundred and fifteen acres the evidence is conflicting, and the finding of the superior court cannot be disturbed. The evidence introduced by the plaintiff showed that, in view of the rapid increase of the population of the city, the probable necessity of extending additional lateral galleries to obtain a larger flow of water, and to -conform to changes in the channel of the surface stream, and the necessity of excluding livestock from the land to prevent contamination of the water, it was necessary that the city should have the exclusive ownership and control of the whole tract. 5. Appellants next contend that the amount awarded by the jury as compensation for the tract condemned was not justified by the evidence. The jury found that the value of the defendants’ interest in the three hundred and fifteen acre tract was twenty-three thousand dollars, and that their remaining land would be damaged two thousand dollars by the severance of the smaller parcel. Appellants concede that the evidence sustains this verdict if the value of the land for agricultural purposes is alone to be considered, but they claim that it is of enormously greater value by reason of the great quantity of water percolating in the soil, which, they contend, they have a right to collect and convey away to other lands for sale. This claim of ownership of percolating waters is met by a claim on the part of the plaintiff that what the defendants call percolating waters are as truly a part of the Los Angeles river as the visible surface stream, and out of this contention arise, the most important questions in the case. There seems to be no substantial conflict in the evidence and no radical difference between the parties as to the character of the subsurface flow in the tract condemned. It is agreed that all the waters of the San Fernando valley, except what is lost by evaporation or consumed in plant life, flow out through the narrow pass between the eastern extremity of the Cahuenga range and the "Verdugo hills, either on or beneath the surface, and there is abundant testimony to warrant the conclusion that at ordinary stages of the river the water flowing on the surface and that which is beneath the surface are in intimate contact and moving in the same direction. The land condemned is situated a short distance west of the narrow outlet of the valley, but the conditions, though differing slightly in degree, are substantially the same. The valley is somewhat wider, but there also the water on the surface and that beneath the surface are in contact and all flowing in the direction of the outlet—on the surface at the rate of two or three feet per second,underground at an estimated rate of from fourteen to seventeen miles per annum. It appears, also, as stated above, that the Los Angeles river first appears as a surface stream a few miles west of the tract condemned, and gradually increases in volume as it flows to the east. The fact of this gradual increase in the surface flow of the river, taken in connection with the other facts above detailed, would seem to warrant the inference that the waters of the San Fernando valley, in seeking an outlet to the ocean, flow under the surface as far as they can find room to pass through the bowlders, sand, and gravel which fill the space between the hills on either side, and gradually rise above the surface as the valley narrows and leaves less and less room for passage underneath. Much the larger portion of an extremely bulky record is filled with the evidence of expert witnesses in regard to the topography of the San Fernando valley, the material composing the valley proper, the amount of rainfall, measurements of surface flow, and a great variety of matters bearing upon this question of a subterranean stream. A careful study of this • testimony, which, though conflicting upon many important points, is in reference to the larger and more general aspects of the case quite harmonious, convinces us that it is sufficient to sustain a finding in favor of the. existence of a subterranean stream if the law with respect to subterranean streams was correctly laid down in the charge of the court to the jury. There can be little doubt, we think, that the jury, under the instructions of the court, found that the subsurface flow in those lands was a part of the Los Angeles river and governed by the law of riparian ownership, or by a pueblo right still more favorable to the plaintiff. If this was the finding, and if it was made under correct instructions, it cannot be said that the awrard of compensation is unsustained by the evidence, for, aside from the water flowing in the subterranean portion of the stream as defined by the instructions, there is no evidence to prove the existence of any considerable quantity of percolating water in the tract condemned, and the same evidence which shows an inconsiderable quantity of such water tends strongly to prove that it could all be intercepted or drained by the owners of the adjoining lands before reaching the land taken. That is to say, if the defendants have the right to tunnel or trench their lands below the plane of saturation for the purpose of draining off .water which has not yet reached the surface, or subsurface, stream, their neighbors on the north have the same right, and, since only a very small portion of the three hundred and fifteen acre tract is higher than the bed of the stream, the percolating waters which they could drain without interference with the stream would be too inconsiderable in amount, and their right too precarious to add materially to the value of the land. Our conclusion on this point is that the verdict must stand if the jury were correctly instructed, and this brings us to the consideration of the most important questions involved in the case. 6. A great many exceptions were taken to different instructions given by the court, and it is now insisted by appellants that the entire charge was in substance erroneous, and that the court erred in refusing to give the instructions requested by them because they presented the law correctly, while the instructions actually given did not present it correctly. In view of the great number of exceptions to the charge on account not only of what it contains but of what it does not contain, there seems to be no more convenient method of presenting the points to be considered in this connection than by quoting very extensively from the record. The court charged the jury as follows: “I. Gentlemen of the jury: This is an action whereby the plaintiff seeks to condemn for public use all the right, title, interest, and estate of the defendants in the lands described in the complaint. The land is situated in and on each side of the Los Angeles river several miles above and north of the city of Los Angeles. The questions arising in the case involving the right of the plaintiff to condemn the property, and the nature and extent of the defendants’ estate and interest in the land to be taken, has been determined by the court. The only question you are to decide is the amount of compensation which the defendants are entitled to before their estate and interest in the land can be taken as proposed. “II. This compensation is to be composed of two parts or elements : 1. The value of the interest and estate of the defendants in the land described in the complaint; 2. The amount of the damages which will accrue to the other land of the defendants, which is part of the same parcel as the land to be taken, by reason of the severance of the land to be condemned and the construction of the works thereon as proposed by the plaintiff. For the purpose of assessing this compensation and damages the right is deemed to have accrued at the date of the summons, which is June 37, 1893, and the actual value at that date is the measure of value for all property taken, and the basis of damages for all property injuriously affected. “III. The defendants’ estate in the lands in controversy is an estate in fee simple, but it is subject to the right of the city of Los Angeles in the waters of the Los Angeles river. This river flows through the land to be condemned. If the city of Los Angeles had no interest in the river waters, then the defendants would have all the rights of riparian proprietors in those waters. As it is, their rights as riparian proprietors are impaired and diminished to the extent that the rights of the city affect those rights. “IV. The city of Los Angeles is situated on the river below these lands, and is the owner of the right to take from the Los Angeles river all the water that is reasonably necessary to give an ample supply for the use of its inhabitants and for all municipal uses and purposes for which the city may require water. This right is measured by the necessity, and if the needs increase in the future the right will expand to include all that the needs require. This right of the city is paramount and superior to the rights of the defendants in the waters of the river. “V. The defendants, therefore, have no right to so use or divert the water of the river as to diminish the same so that it will not furnish the amount needed for the supply of the city aforesaid, and, in determining the value of the land to be taken, this fact must be considered, and the value of the land for which defendants are entitled to compensation is its value subject to the above stated right of the city. “VI. After the wants of the city are supplied, however, the defendants have the right to use the water of the river on their lands for any and every purpose which does not interfere with the equal rights or injure the lands of other riparian proprietors along the river above and below this land. These rights include a reasonable use of water of the river on the land for irrigation, domestic purposes, watering stock or other lawful purpose; also to obtain power by means of the fall of the stream on the land, returning the water to the stream before it leaves the land; also the benefit of having the water flow in its accustomed manner through the land. The right to use the water to irrigate the land through which it runs is subject to the condition that other riparian owners along the stream have the same right, and, if the water is not sufficient for all, neither has a right to use more than his reasonable share. All these rights are incident to the land because the river borders on the land; and they are not mere appurtenances, but are part and parcel of the land itself. “VII. In exercising this riparian right the defendants have no right to carry any of the waters of the Los Angeles river off of their riparian land for use on land not riparian, nor can they sell it for use on land not riparian; and all surplus waters must be turned back into the stream. “VIII. Eights in a subterranean watercourse or stream are governed by the same rules as a surface stream of water; and the only rights that the defendants, as owners of the lands sought to be condemned, would have in any subterranean watercourse flowing through their lands down to and through the lands of others (whether said stream flowed on such lower lands above the surface or beneath the surface of the ground) would be to make the same, but no other, use that they would be entitled to make had such waters flowed on the surface. “IX. A riparian proprietor is not entitled to divert (for any purpose except for purposes for which he is entitled to make use of, water on his riparian lands as specified in these instructions) any portion of the waters of a watercourse, or stream, whether surface or subterranean; and he cannot by any indirect means make such diversion where he would not have been authorized to do so directly. “Therefore, a riparian proprietor cannot, by sinking tunnels or making other excavations under the sides or underneath the bed of such watercourse, draw away for use on nonriparian lands any of the waters flowing in such watercourse, although said excavations may not directly touch said stream; if, for instance, the water of such stream percolates into the banks or bed thereof to a considerable but limited distance, and such percolating water is stationary, or has very little motion, said riparian proprietor would have no right to make an excavation so as to draw off said percolating water, if the effect would be to cause any of the running waters of said stream to leave the same in order to fill up the voids left in the banks or bed from which said percolating waters were drawn by such excavation, any more than if said excavation was made so as to tap said stream directly. “X. The mere fact that some of the subterranean water forming part of the stream on the lands sought to be condemned may be lost before reaching the point where the same would have gone into and made up part of the surface or subterranean stream of the Los Angeles river, would not give the defendants the right to divert an amount of said subterranean waters in said lands equal to or less than the amount so lost, if such diversion would have the effect of diminishing the waters, surface, or subterranean, of the said river at any point above the south line of the pueblo lands of the city of Los Angeles. “XI. Whatever additional market value the land may have had by reason of these rights and advantages, so far as they do not interfere with or impair the rights of the city aforesaid, this value the defendants are entitled to as a part of the value of the land, before it can be taken; and this value you must include in your estimate of the value of the land sought to be condemned. “XII. In addition to these rights and benefits arising from the flow of the river through this land, the defendants are the absolute owners of all such water as may be present in the soil of this land and which does not constitute a part of the water of the river. This is usually called percolating water. There is, however, no magic in the word ‘percolating/ and the fact that any witness may apply that word or refuse to apply it to any particular class of waters of which he may speak is not conclusive of the question whether or not such water does or does not form part of the river. That question is to be determined by you from a consideration of the facts proven. The right and ownership of the defendants in this class of waters is distinct from and much greater than their right to the waters of the stream. As to the waters of the stream, they have a right only to the use of it on this land, and they do not own its corpus, or its body, or the very water itself, and they have no right to take it away from the land and use it on other lands, or to sell or dispose of it for use on other lands or at other places. But as to this other water, if any there be in this land, not a part of the stream, they are the absolute owners of it, to the same extent and as fully as they own the soil, or the rocks or timber on the land. Therefore if, by any means, they can separate this water from the land, they have an absolute right to the water thus separated and may conduct it away and sell or dispose of it anywhere as they see fit, subject only to the limitation that they may not excavate or do anything on the land for the mere purpose of intercepting such Avater and preventing it from floAving into the stream or watercourse on the land of another and without intending to make any beneficial use of it themselves. Whatever additional market value this land may have had by reason of the presence therein of water of this class, or by reason of the feasibility of separating it from the land, or of using it on the land, or of conducting it to some other place for use or sale, or of the great market value of such water for such purposes, or by reason of all these things combined, or by reason of any other lawful benefit or advantage which this Avater gives, this additional market value inures to the benefit of the defendants and is a part of the compensation to which they are entitled in this case as the value of the land to be condemned. “XIII. It will be necessary, therefore, for you to determine what waters upon or in this land are a part of the waters of the stream, and what waters are not of the waters of the stream. This question is a question of fact to be determined by you from the evidence, under the instructions of the court. “XIV. The Los Angeles river is composed of its main stream and any branches it may have, whether surface or subterranean. “XV. While a watercourse must have a bed and banks or sides, yet such bed may consist of any material which keeps the waters from penetrating below a certain depth, and such banks or sides may consist of any material which has the effect of confining the waters within circumscribed limits. “XVI. It does not always follow that water which does not flow on the surface in a visible stream is for that reason not a watercourse, or not a part of the water of a stream which does at some place run on the surface; nor need it flow in a defined channel underground as a solid body of moving, water of any particular dimensions in order to constitute a watercourse. “If you find from the evidence that there is a bed or a river bottom filled to a considerable depth with sand, gravel, or other porous material, meandering over which a stream runs on the surface, and through and in which the water moves underground, enough of it rising to the surface to supply the surface stream, and the other portions of the underground water moring Avitli a much less velocity than the surface stream, and through a Avider or larger space in and through the interstices of the porous material, but in the same general direction as the surface stream and in connection with it, and in a course and within a space reasonably well defined, the conditions being such that the existence and general direction of the body of water moving underground can be determined with reasonable accuracy, then that portion of the water thus moving underground should be considered as a part of the watercourse as well.as that part which flows over the surface. “If such watercourse exists, it is immaterial, so far as the watercourse is concerned, from or through what lands the waters flow in reaching the channel, or whether they reach the same by percolation or by clearly defined streams. “XVII. So, also, if you find that the water coming down on the surface in the streams known as the Tejunga, Little Tejunga, and Pacoima creeks, in the northeastern portion of the watershed, is discharged on the plain known as the San Fernando basin, and 'there sinks in the sand, washes and flows 'down southwardly underground through sand, gravel, or other material easily permeable by water and along the courses and in channels which have been made by the streams of water from these same creeks flowing on the surface, but which channels wrere long ago filled up with this porous material; that these waters now flow in these channels beneath the surface to the land in controversy; that on this land there is a range of hills extending easterly and westerly, so as to change the course of these underground channels, and combine or collect the water into one general body of water and force the same to turn and move eastwardly in a similar channel through these lands, and on down along the general course of the Los Angeles river; that upon arriving at this land a portion of the water rises to the surface and flows above ground as the Los Angeles river, and the remainder flows underground along in the same general direction, and in connection with the surface stream, in porous material formerly deposited by the same stream in its bed, then all this body of water, both above and below the ground, should be deemed a part of the same stream from its source to its outlet. “XVIII. If the jury find that on the lands sought to be condemned there is situated the river bottom of the Los Angeles river, extending the whole length of said land, and oeeupy- ' ing nearly the whole thereof, and containing all of the subterranean waters of said land, and filled to a considerable depth with permeable material, consisting of loam, sand, gravel, and bowlders mixed together and interspersed with irregular and broken strata masses or pockets of clay, and cemented sand or gravel, lying in place substantially as deposited by the forces of nature, and that as the same lies in place the natural voids or interstices of such material generally throughout the whole of said river bottom are equal to from one-fifth to one-third of the entire mass; and that the subterranean waters in said lands enter the same chiefly from the north and partly from the west sides thereof from lands composed of substantially the same materials as the lands sought to be condemned, said waters so entering under pressure caused by gravity; and that the south boundary of said river bottom is formed of an impermeable dike of rock known as the Cahuenga hills; and said waters entering from said north side are prevented from continuing their flow to the south and are dammed up by said wall of rock, and that all of the subterranean waters in said river bottom are thereby forced to fill all of the said interstices and void places in the material of which said river bottom is composed to a height in some places equal to and in some places greater than the level of the surface stream of the river; and that there are no impenetrable and continuous barriers extending through the said mass in said river bottom in any direction so as to interrupt and prevent the substantial continuity and contact of all of said subterranean waters; and that some of said subterranean waters to the amount of about one thousand miners’ inches constant flow, measured under a four-inch pressure, being so brought to the surface, enter into and form part of the surface stream of the Los Angeles river on said lands, so that the amount of said surface flow at the point where the same leaves said land on the east is increased, by about one thousand inches over the amount of its surface flow at the point where it enters said land on the west; and that the’ remainder of said subterranean waters move underground to the east, although with a varying velocity and much slower than the said surface stream, but in the same general direction with it, off of the lands sought to be condemned and still continuing in and through the river bottom of the Los Angeles river, which is composed of like permeable material as aforesaid, and bounded and confined on the southerly, and as it turns to the south, on the westerly side thereof by the same continuous dike of rock; said waters still maintaining their substantial continuity; and that part of said waters rise from time to time as they flow in said river bottom and feed the surface flow of said river; and the remainder of said waters continue to move underground in said river bottom as aforesaid; and that said waters continue to move in that manner for several miles after leaving the lands sought to be condemned, and until said river bottom enters within the limits of the city of Los Angeles, crossing its northern boundary; then the jury must find that all of the subterranean waters contained in the land sought to be condemned are a part of the waters of the Los Angeles river. “XIX. On the other hand, the law is that innumerable little streams finding their way through the soil, or seeping or percolating through the material of which it is composed, do not become watercourses simply because the amount, when exposed, is visible. “A watercourse must consist of beds, banks or sides and water, and the water must be flowing in a channel or course more or less defined. It is not necessary that the water should flow continually, or at all times of the year, but neither is a mere swale, in which extraordinary freshets flow, sufficient to answer the definition. To maintain the right to a watercourse or brook it must be made to appear that' the water usually flows in a certain direction and in a regular channel, with banks or sides, though it need not to be in a straight line. “Waters, whether under or above ground, having no certain general course or definite limits, such as those merely percolating through the strata of the earth and those diffused over its surface, are not watercourses, and are not subject to the rules of law applicable to watercourses. “To entitle an underground stream to the consideration of the law, it is necessary that it be a watercourse in the proper sense of the term. Percolations which spread themselves in every direction through the earth do not constitute watercourses. “Water moving by force of gravity in a valley or basin of wide extent, say twenty-four by twelve miles at the extreme extent, and moving generally through the whole or through a large portion of the basin, along through the natural voids or interstices of the earth, composed of alluvial or other deposit lying throughout the entire basin, and made up of loam, sand, gravel, and bowlders mixed together, and interspersed with irregular and broken strata or masses of clay or cemented sand and gravel, and lying in place as originally deposited by the forces of nature, do not constitute a watercourse, but are a part of the land and belong to the owner of land as fully as any other eonstitutent part of it. “XX. If you find from the evidence that the lands sought to be condemned are situated at the lower portion of and form a part of the San Fernando basin or watershed, near or at its outlet, and that said basin is about twenty-four miles long and about twelve miles wide at the widest point, and that said outlet is from two thousand feet to three miles wide and bounded and defined on the southern side by the rock of the Cahuenga range and on its northern side by a similar rock of the Verdugo hills, and that the earth of which the basin is generally composed, including said outlet and the land sought to be condemned, is an alluvial or other deposit made up of loam, sand, gravel, and bowlders mixed together, and interspersed with broken or irregular strata or masses of clay or cemented sand and gravel, and lying in place as originally deposited by the forces of nature, and that as the same lies in place the natural voids or interstices of such earth, generally throughout the basin, including the defendants’ lands and said outlet, are equal to from one-fifth to one-third of the bulk of the entire mass, and that such entire deposit lies upon a grade or slope toward and through the outlet of such'basin, and that all the water falling in the watershed of such basin, which is not lost in storm, runoff or by evaporation or in supporting plant life, or held immovable in the ground, sinks into the earth composing such basin, and thence by force of gravity moves down through such voids or natural interstices of the earth throughout the greater portion of the entire mass to the outlet of the basin, through which it passes, without forming anywhere in the mass any definite course or channel in which it can be ascertained with reasonable accuracy that such water is moving in greater quantities or with greater velocity than in other places, "so as to be concentrated in a stream either above or below ground, then such waters so moving through such outlet, or through or in defendants’ land in the natural voids or interstices of the earth, do not constitute a subterranean flowing stream or watercourse, but they belong to the owner of the soil in which they may be found, and the portion of them which may be found in the land of the defendants are the property of the defendants. But if such water does collect underground and flows in certain courses or channels through coarse, permeable material therein, where the existence and general course of the flowing or moving body of water can be easily determined, then the water so moving in such channels would constitute a watercourse, although not visible on the surface, and although the space through which the channel extends may be largely filled with the material through which the water flows. “The burden of proving that waters moving in the ground are flowing in a natural watercourse or in a defined channel, or are a part of a stream, is upon the plaintiff in this action. The presumption is that they are not part of a stream or watercourse nor flowing in a definite channel. “XXI, A stream which flows along and in a natural channel, at some places flowing on the surface and at some places sinking in porous material which has been deposited in and has filled the channel, and there passing down along in the same channel underground and again rising to the surface and flowing as a surface stream, is no less a stream or watercourse at the points where it flows under the surface than at the places where it runs on the surface. And if part of the water remains moving underground at the places where the surface stream flows, all of the water, both above and below the surface, constitutes the stream. And if at places the channel widens very much and is filled with gravel, sand, or other porous material in which the water spreads so as to fill the voids of the porous material, forming the semblance of an underground lake or •reservoir with no water appearing on the surface therein, but with the water passing on beneath the ground down the widening channel and afterward reappearing below as a surface •stream, then the water would be as much a part of the stream while it was contained in such underground lake or widened ■channel as while it was flowing on the surface. “And, on the other hand, water which has not formed part of such stream and is not moving in such underground channel, but comes from surface water or from rains and floods sinking into the ground and passing through the soil by gravitation, having no general direction, although it may eventually find its way into some stream or watercourse and materially add to the water thereof, yet while so passing through the ground it is not a stream or watercourse, but is part of the soil and is the property of the owner thereof. “XXII. In determining the actual value of the land taken, you are to take into consideration all of those factors which enter into and make up its value. The altitude of the tract, the capability of taking to the city of Los Angeles and to the ■country east and west of it, by gravity, the waters which may be collected on said land, without talcing the waters of the natural stream; the a