Dykzeul v. Mansur

GRIFFIN, J.—

This is an ordinary action to quiet title wherein plaintiff alleged ownership of certain described real property and that defendant “claims some right, title, interest, estate or lien in or to the above described real property adverse to these plaintiffs. . . .” Plaintiffs and appellants

[505]

herein, a few months before this action was commenced, purchased, as joint tenants, a tract of land (approximately 1,100 acres which originally was a part of the Rancho Pauma) lying in the northeasterly section of San Diego County. Upon taking possession of the land, plaintiffs learned that the defendant owned a tract of land of approximately 34 acres which, in part, bordered upon the southerly boundary line of the plaintiffs’ tract. For many years a small stream of water has flowed across this 1,100-acre tract and into the San Luis Rey River, the source of which arose in the mountains northeast of the rancho. It flowed diagonally southwesterly through the westerly corner of the 1,100-acre tract, thence across a small portion of lot 3 of defendant’s land and thence diagonally southwesterly across lot 2 of the same land. The stream of water crossing this property is fed to some extent by springs upon plaintiffs’ land. After taking possession of the 1,100 acres plaintiffs were informed by defendant that defendant owned, or at least claimed the water arising on or crossing the land just purchased by plaintiffs. This action followed.

In the answer filed, defendant admitted his claim to “an easement in and upon the land described” and alleged that because of an appropriation recorded in 1891 by one Mary Salmons he had the right to divert and take from plaintiffs’ land 100 miner’s inches of water under a 4-inch pressure; that he had a prescriptive title to 100 miner’s inches. He filed a cross-complaint setting up his claimed right thereto, as well as a right and easement to maintain upon plaintiffs’ land, pipes and ditches for the diversion of water, and to divert water and transport it upon his land. He prayed that his said easements may be established.

The evidence discloses that for many years there had existed over and across plaintiffs’ land and on lot 3 of defendant’s land, an open ditch through which water had been diverted from the stream above mentioned; that, originally, the ditch had been approximately a thousand feet in length from the southerly boundary line of plaintiffs’ land, but that floods had washed out the ditch until, from 1937 on, the ditch was approximately 205 feet in length. The evidence also shows that from 1937 on the defendant had taken water from this stream on plaintiffs’ land and conveyed it by means of