People v. Bosse

PULLEN, P. J.

—Appellant was charged with the crime of breaking, injuring and destroying a dam, an indictable misdemeanor, as defined by section 607 of the Penal Code. He was found guilty, and from the judgment entered thereon, prosecutes this appeal.

The grounds of appeal generally are insufficiency of the evidence to support the conviction and alleged misconduct of the district attorney.

Defendant Bosse is the owner of certain lands, riparian to the south fork of the Mokelumne River, which he has irrigated for many years, both under his riparian rights and under an appropriative right. The complaining witness, Eugene Fuchs, likewise owned lands riparian to said stream, immediately below the lands of Bosse. Some seven acres of this land are irrigated under a right by appropriation, which is subordinate, both in point of time and law to the rights of Bosse.

The water used by Fuchs is diverted from the stream by means of a dam in the river located upon the lands of Bosse, and is carried from the dam by means of a ditch which extends from the point of diversion in a general westerly direction about one-half mile to the point of use.

This diversion dam was built in 1895 and consisted of a bottom log about 22 inches in diameter laid crosswise in the bed of the stream, and on top of this log was pinned a smaller log, which smaller log was from 6 inches to 10 inches in diameter. The bottom log at all times since has remained in place. The top log remained in place until 1914 when it rotted out. It was immediately replaced by a similar log in a similar manner. This second log, during the winter of 1936, was washed out, and it was replaced by two timbers, a 4x6 and a 2x6 placed upon the bottom log. During the summer of 1936 Bosse removed these timbers.

It was his contention that prior to the placing of these two timbers on the top of the dam Fuchs had been diverting some 90 miner’s inches of water, but by the addition of the planks 170 inches was then diverted. Bosse also contends that the

[278]

complaining witness had never acquired a right to water in excess of 90 inches, and that even 90 inches was more than could be beneficially applied to the lands to which the water was diverted. He also claims that to increase the height of the dam was an invasion of his water right, added an increased burden to his lands, was contrary to law, and therefore he had a lawful right to remove such encroachment, and for that reason his conviction was erroneous.