Larsen v. Apollonio

CURTIS, J.

This action was brought to quiet plaintiffs’ title to the waters of a stream, which will be later referred to and described, and to enjoin the defendant from diverting, pumping or otherwise interfering with said waters. The stream involved is a small tributary of the south branch of Brush Canyon Creek in the county of El Dorado. The stream runs in the bed of a ravine in a northwesterly direction, and plaintiffs’ lands are situated in a westerly direction from the

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stream. The evidence shows that in or about the year 1895, some thirty-seven years before this action was brought, plaintiffs constructed a dam in the stream and a ditch extending from said dam to their said lands, and by means of said dam and ditch they diverted all the waters of said stream to their said lands, where they have been used by plaintiffs for household and domestic purposes and for the irrigation of their said lands. Some four and one-half years before the institution of this action, the defendant acquired a portion of the tract of land through which said stream runs. Defendant’s land is situated above the dam and ditch constructed by plaintiffs, and said stream enters defendant’s land at the south boundary thereof and runs in a northwesterly direction through the entire tract and then down to plaintiffs’ point of diversion. There seems to be some disagreement between counsel as to the distance from defendant’s northerly line to the plaintiffs’ dam and ditch. One claims it is 300 to 350 feet, while the other insists that it is 1500 feet. The exact distance is not material. After defendant acquired his tract of land he sunk a well thereon and within less than 40 feet from said stream, and has installed a pump in said well, by means of which he pumps from said well a substantial quantity of water which he has used upon his said tract of land. He also has installed a hydraulic ram at the mouth of an old tunnel located in the bed of said ravine by which he pumps and diverts water which he uses upon his said land. The pump installed in the well has a capacity of 900 to 1,000 gallons per' hour. He pumped from the well approximately 16,000 gallons a day, and from the tunnel by the hydraulic ram some 240 gallons per day. Plaintiffs claim to be the owner of the use to all the waters in the stream, and brought this action, as above noted, to quiet their title to said waters and to enjoin the defendant from interfering with their exclusive use of said waters. Upon the trial of the action the court made findings in favor of plaintiffs and entered its judgment quieting plaintiffs’ title to the waters of said stream, the amount of which the court fixed at 15 miner’s inches, and enjoining defendant from using any of said waters during the irrigating season of each year, beginning May 1st and ending October 31st. The defendant has appealed from this judgment.