Whelan v. Zahniser

MUSSELL, J.

This is an action to quiet title in which plaintiffs seek to terminate an easement granted to the predecessors in interest of defendants for the construction and maintenance of a drainage ditch extending from Foss Lake to the San Luis Rey River in San Diego County. The area covered by Foss Lake is owned by the defendants, and in 1918 was owned by John Johnston, Jr., and his wife. On June 25, 1918, the Santa Fe Land Improvement Company, predecessors in interest of plaintiffs, executed a deed conveying an easement across property owned by them to the Johnstons for the purpose of constructing and maintaining a drainage ditch. The Johnstons also obtained an easement over an adjoining area known as the Pico property, now owned by plaintiffs. This easement was likewise for the purpose of maintaining a drainage ditch, and the ditch constructed in accordance with the terms of the two easements runs in a southwesterly direction from Foss Lake, across the property here involved, then across the so-called Pico property, and empties into the San Luis Rey River. The upper part of Foss Lake is fed by springs and has never been entirely dry. The lake is shallow and at certain times of each year most of it dried up so that there was no water running in the drainage ditch. At other times of the year a stream of water ran through the ditch to the San Luis Rey River.

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Sometime in 1943, after the establishment of Camp Pendleton by the United States government, water used in the operation of the camp, pumped from the Santa Margarita River, was drained into Pilgrim Creek which empties into Foss Lake from the north, and such water then flowed into Foss Lake and down the drainage ditch to San Luis Rey River. Since the establishment of Camp Pendleton there has constantly been water flowing down the drainage ditch at all times. Apparently Mr. Johnston intended to drain Foss Lake and use the land for agricultural purposes. He constructed the ditch in 1919 but abandoned his original plan and the lake has been used as a place to hunt ducks during the hunting seasons since 1919. While there was testimony that some one had placed sand bags in the ditch to increase the size of the duck hunting area there were no dams or obstructions that interfered with the flow of water down the ditch.

Defendant Ellis Zahniser bought the Foss Lake property in 1945 and also received deeds to the two easements for the drainage ditch from Foss Lake to the San Luis Rey River; He testified that at that time water was flowing into the lake through Pilgrim Creek from Camp Pendleton, and through the drainage ditch but was not escaping fast enough and because of complaints of other property owners that the lake was becoming “too large” he decided to clean and deepen the drainage ditch. In March, 1946, Zahniser cleaned 300 or 400 feet of the ditch on plaintiffs’ property, and in August and September of that year performed additional work in deepening the ditch. This work was done at a cost to defendants of approximately $4,000 and plaintiffs made no objection, in fact gave the United States Navy permission to deepen the ditch along the easement across the Pico property. Since the deepening of the ditch by Zahniser and the Navy, Foss Lake has dried up and the area is used for farming. The water from Pilgrim Creek now flows directly through the Foss Lake area down the drainage ditch to the San Luis Rey River.