Frey v. Garibaldi

PLUMMER, J.

Action by plaintiff to quiet title to 35 inches of water measured under a four-inch pressure of water flowing in a certain stream called “Stony Gulch Creek’’. The plaintiff’s title to the water rests upon an alleged appropriation thereof when the lands involved in this action were all a part of the public domain of the United States. Plaintiff’s predecessors diverted the waters of Stony Gulch Creek some time in the late 50’s or early 60’s, and conveyed the same through a certain ditch known as and called “Bob Liddle Ditch’’. The plaintiff also asks for an injunction against the appellant from diverting by any means any of the waters flowing in said Stony Gulch Creek.

[84]

The lands belonging to the plaintiff, and upon which the waters diverted through the ditch referred to are used, are situate a mile or so below the lands owned by the appellant. The water involved is a small quantity, consisting of about one miner’s inch, and is water developed by the excavation of a tunnel on lands now owned and possessed by the appellant.

The court found that the waters just referred to came from a tunnel excavated on the lands of the defendant Garibaldi, and consists of a part of the natural flow of the stream of Stony Gulch Creek, and has been a part of the natural flow of said stream since the placer mining operations therein some time in the 60’s, and is part of the natural flow of the said stream, subject to appropriative right of the plaintiff and her predecessors.

At the conclusion of the plaintiff’s testimony, the appellant made a motion for a nonsuit. This motion being denied, the appellant rested his case upon the testimony introduced by the plaintiff.

The testimony in this case all relates to the date of the appropriation of the waters of Stony Gulch Creek, as diverted and carried to the lands of the plaintiff by means of the Bob Liddle ditch. There is no direct testimony that the lands of the appellant herein were a part and portion of the public domain at the time of the alleged diversion of the waters of Stony Gulch Creek. We do not need to question the contention made by the respondent that the testimony is sufficient to raise the presumption that all of the lands mentioned in this action were at that date a part of the public domain of the United States; nor do we need to question the contention of the respondent that the predecessors in interest of the respondent appropriated at least 35 inches of the waters of the above-named stream, and at a time when the lands were all a part of the public domain. This, however, does not entitle the plaintiff to judgment. While the argument in this case has taken a wide range, there are certain vital facts determinative of this action, not touched by the testimony. Before discussing the failure of testimony to reach the vital point involved in this action, we will refer to the case of