Sibbett v. Babcock

PAULSEN, J. pro tem.

*

*

Appellants brought this action to quiet their title to one-half the water flowing in a small tributary of the Russian River from the 1st of May to the 31st of October each year; to enjoin the diversion thereof by respondents, and for declaratory relief. The trial was limited to a determination of the issues raised by the respondents’ plea that the causes of action were barred by the statute of limitations. (Code Civ. Proc., § 318.) The trial

[568]

court found that they were so barred and decreed that appellants take nothing by their action. This appeal is from the judgment rendered.

Bach of the parties owns property which is riparian to the stream, the Babcock property being located above that of appellants and the Johnson property being located still farther upstream.

It is not disputed that respondents could and did put the water taken by them to a beneficial use for the months in question, but there is a conflict in the evidence as to whether or not respondents had done so during the summer months for a continuous five-year period between the years 1941 and 1949. Appellants contend that respondents failed to show that appellants or their predecessors in interest “had a cause of action at any time prior to the filing of this complaint” and argue that if they “became seized or possessed of any part of the water up to at least one-half the flow . . . for any one year then the 5-year.period is broken.”

The problem presented here is simplified by appellants’ own statement:

“The crux of this whole matter seems to hinge on whether the defendants have fulfilled the burden of proof and shown that Sibbetts’ rights to a reasonable amount of water have been infringed for a period of 5 years beginning in May of 1941. Certainly the defendants were vague as to the amount of water flowing through their properties, how much they used, and how much was allowed to flow across and off their premises. Their testimony as to use and amounts of flow in certain years was worthless and they failed to tie in any year or years in particular that they used water and how much.”

The trial court found that respondents Babcock had secured a permit to take water from the stream in the year 1940 and had immediately commenced to construct a dam across the stream and beginning with the year 1941 “said defendants have continuously taken this water in the summer months, claiming to own it as against all persons. ’ ’ It found further that “To all intents and purposes they have during the years taken all of the water of the stream in the summer months, there being only occasional times when water went past their dam and down the stream in any significant quantity.” The evidence shows without dispute that in 1940 the Babcocks applied for a permit to take water out of the stream and after it was granted that year they constructed a dam about five feet high. About the 1st of May, 1941 they