Haun v. DeVaurs

ADAMS, P. J.

Plaintiff Eleanor E. Haun, and plaintiffs Mamie F. Rahilly and Michael Rahilly, Jr., brought these two actions to restrain defendants Leslie DeVaurs and Margaret Patricia DeVaurs from diverting water from Middle Slough, which slough was alleged to be a natural watercourse, its waters first flowing through the property of defendants and thence through that of plaintiffs below. Plaintiffs were appropriates of specified amounts of the waters of the stream as foreign waters, that is, waters that had been abandoned by the Merced Irrigation District and permitted to flow down Middle Slough. Defendants denied such rights in plaintiffs, contending that the slough is not a natural watercourse, the waters of which are subject to appropriation, that they were not “foreign” waters, and that defendants had acquired a prescriptive right to such waters.

The trial court found that the slough is a natural watercourse, that its waters are mainly foreign waters, that they were subject to appropriation, and that defendants had not acquired a prescriptive right to same. Judgment was entered for plaintiffs adjudging that, as between the parties, plaintiffs had a prior and paramount right to the use of the water in the slough to the extent of their appropriations, and enjoining defendants from diverting water to which plaintiffs were entitled.

Defendants have appealed, and here contend, first, that Middle Slough is not a natural watercourse, but an artificial one, and that only waters flowing in a natural watercourse are subject to appropriation. They concede that whether a slough is or is not a natural channel is a question of fact, but urge that in this case the evidence is uncontradicted, wherefore a question of law is presented which should have been resolved in their favor.

The evidence shows that Middle Slough was originally a branch of Mariposa Creek from which it received a portion of the flow of that stream. Long prior to the beginning of these actions the upper portion of the slough was filled in by the landowners whose lands it traversed, and flow from Mariposa Creek was cut off. There is evidence, however, that where

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the slough crosses the lands of the parties to this action it has a well defined channel and distinct banks of such depth and declivity that vehicles cannot be driven across it at most points. Into this channel flows water produced by rainfall on adjoining lands. It also carries waters drained from the Merced Irrigation District lands above defendants’ lands.