McAlister v. Dungan

MR. PRESIDING JUSTICE FINCH Delivered the Opinion of the Court.

On lands owned by the plaintiff there is a short gulch, at the upper and southerly end of which is a bluff. Immediately below the bluff the gulch is about forty feet in width and it gradually widens and has a steep slope to the north. Water percolates through the gravel and soil in the upper end of the gulch, which is “wet and swampy”, and comes to the surface in various places. The defendants G. A. Dungan and Eleanor Dungan are the owners and the defendant Biasca is the lessee of lands lying below the McAlister lands.

In an action in which the defendants’ predecessor in interest was the plaintiff and the plaintiff’s predecessors in interest were the defendants on December 17, 1902, it was adjudged that the plaintiff therein was “the owner of and vested with the legal title to that certain spring of water . . . situate on the lands of said defendants near the northeast corner of the northeast quarter of the northeast quarter of section 18 . . . and of and to all the waters thereof, and of and to the right to conduct the waters of said spring across, through, and over the lands of said defendants . . . to the lands and premises of said plaintiff. And that said defendants have not, nor have either of them, any right, title or interest in and to the waters of said spring or any portion thereof.”

[187]

While the judgment does not accurately locate the spring, all the parties agree that it was somewhere in the head of the aforesaid gulch. For many years prior to the judgment the plaintiff in that action and his predecessors in title had conveyed the water in controversy therein through a pipe from a point near the easterly side of the head of the gulch 'to his lands. The plaintiff herein contends that the water flowing from an excavation at that point constitutes the spring referred to in said judgment. The defendants’ contention is that the whole head of the gulch constitutes the spring referred to and that the excavation mentioned is a mere sump for the collection of the water for diversion through the pipe-line. Witnesses for the plaintiff herein testified that the water which the defendants diverted arose from the bottom of the excavation. The defendants’ witnesses testified that water was drained from across the head of the gulch into the excavation. Some seventy feet from the excavation, and at an elevation of about ten feet lower, water naturally comes to the surface in two places which the plaintiff contends are springs. They are referred to by the witnesses as plaintiff’s springs number 1 and number 2. In the dry year of 1924 the water in the excavation failed, whereupon the defendants enlarged and deepened the excavation and dug a ditch across the head of the gulch, through which they increased the flow of water into the excavation, and they also lowered the intake end of their pipe-line, with the result that the plaintiff’s spring ceased to flow. The defendants introduced evidence to show that they had always maintained a ditch across the head of the gulch, but it is admitted that in 1924 they enlarged and deepened it. The plaintiff brought this action to enjoin the aforesaid interference with the natural flow of water through her land and for damages. Judgment was entered in her favor and the defendants have appealed.