Bathgate v. Irvine (126 Cal. 135, 1899)

CHIPMAN, C.

—Action to quiet the title of plaintiffs, two hundred and seventy-five in number, to the waters of Santiago creek in Orange county, and for an injunction.

Plaintiffs appeal from the judgment, from the order denying motion for new trial, and from certain parts of the order disallowing plaintiffs’ cost. Defendant appeals from certain parts of this latter order.

Santiago creek takes its rise in high mountain elevations on government land; it flows hy a natural, well-defined channel through and over defendant’s land, comprising about forty-eight thousand acres; thence over and through a tract of land, about one mile in width, owned by persons not mad'é parties to the suit; thence enters and flows .over and through plaintiffs’ lands, comprising in all about two thousand acres. The court found that the predecessors in interest of plaintiffs, about the year 1872, diverted and appropriated all the waters of this creek, about one mile below defendant’s land, and used the same upon their said lands for irrigation and domestic purposes, and that said waters have been so used on plaintiffs’ lands continuously for the past twenty-one years; that plaintiffs have expended large sums of money in cementing ditches and laying pipe lines from said point of diversion; that all the waters of said creek have been used by plaintiffs during the period for purposes of irrigation, domestic uses, and watering stock, “under claim of right, open, notoriously and continuously, and uninterruptedly, .... but said waters have not been used adversely to defendant James Irvine, or his predecessors in interest, .... and it is not true that the said defendant and his predecessors .... knew that the plaintiffs .... used said waters .... adversely to the said defendant or his predecessors, or that said defendant and his predecessors in interest, or either of them, .... acquiesced in said diversion and use by said plaintiffs”; that the waters diverted hy plaintiffs “continue to be absolutely essential for the proper irrigation and maintenance of plaintiffs’ said crops .... and the use .... has been .... reasonable, and no diversion above said plaintiffs’ point of diversion has, during any of the said times, been made by the said Irvine or others except as set forth in plaintiffs’ complaint, .... hut that said diversion and use by plaintiffs have not been exclusive or adverse to said Irvine or his predecessors in interest.” The allegation of the complaint as to defendant’s diversion of the water is that about June 24, 1893, defendant constructed a dam in said stream on his own land about three miles above plaintiffs’ lands and by means of a ditch and flumes wrongfully and without the consent of plaintiffs, and against their objections, diverted the entire surface stream and carried the water out of the watershed in which said stream is situated and to a point where the waters do not return to the ancient channel of said stream, and that defendant continues to so divert all of the surface flow of said water to plaintiffs’ great injury. The court further found that plaintiffs are and have been, during all the times mentioned in the complaint, as riparian owners, entitled to a portion of the waters naturally flowing in said creek, hut are not entitled to all the waters, and that defendant and his predecessors are and have been entitled as like riparian owners to a portion of said waters,