Davey v. Grigsby

RICHARDS, J.

This appeal is from a judgment in the defendants’ favor upon their answer and cross-complaint in an action brought by the plaintiff to enjoin the defendants from demolishing or otherwise interfering with a certain dam and ditches, which the plaintiff claimed the right to maintain as a means for the diversion of the waters of a stream for use upon his own land. The defendants in their answer denied the plaintiff’s alleged right to maintain said dam and ditches, and to the use of any waters diverted thereby from the stream in question, and in their cross-complaint asserted the sole right in themselves to the ownership and use of said waters, and the plaintiff’s threatened or attempted interference with said rights through the diversion thereof by means of said dam and ditches they sought to have the court enjoin.

The stream in question was a small perennial rivulet known as Houten Creek, situated near Cobb, in Lake County. It had its source on land which prior to the year 1913 was owned by the Farmers’ Savings Bank of Lakeport, which conveyed the same in that year to H. C. Davey, the plaintiff, and to W. R. Prather and H. L. Boggs. In the year 1915 said Davey, Prather, and Boggs sold the southerly twenty acres of this tract to Mrs. Grigsby, one of the defendants herein, and a Mrs. Fields, who later partitioned it between themselves, Mrs. Fields receiving the southerly half thereof, which later she conveyed, to W. C. Crittenden, another of the defendants herein. On the southerly side of the tract formerly owned by the Farmers’ Savings Bank lay a fractional quarter-section of land, which had for many years been owned and occupied by a family named Smith. In the year 1893 J. A. Smith, one of the members of said

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family, had gone upon the lands of the Farmers’ Savings Bank, and at a point on Houten Creek thereon somewhat to the northerly of the lands later transferred to the defendants Grigsby and Crittenden had built a small dam of rocks and dirt, and constructed therefrom a ditch across said tract to Ms own land, through wMch, during the summer months, he diverted the waters of said Houten Creek for use in the irrigation of a small portion of his said land lying adjacent to the bank tract. The dam thus constructed was temporary in character, and was washed out by the winter freshets, and was replaced from time to time as Smith desired during the summer months to use the waters of said creek for the irrigation of said small piece of land. In 1913, when Davey and his associates acquired the said tract of land from the Farmers’ Savings Bank, it was found by a survey thereof that Smith’s northerly fence line was about one hundred feet northward from Ms true line upon the lands so purchased by Davey and his associates. Smith’s attention was called to this fact, and he thereupon moved his fence said distance to the southward, wMch had the result of placing practically all of the land which he had been wont to irrigate from the use of said dam and ditch witMn the boundary lines of the lands now owned by Davey, Prather, and Boggs. Thereupon Smith ceased further to use any of said waters for purposes of irrigation upon Ms remaining land, and also ceased to rebuild and maintain said dam and ditch. When in the year 1915 Mrs. Grigsby and Mrs. Fields were about to purchase the southerly twenty acres of the land then owned by Davey, Prather, and Boggs, Mrs. Grigsby made certain inquiries from the member of the Smith family who at that time was the owner of the Smith tract as to whether he had or claimed any right to the diversion and use of the waters of Houten Creek which throughout almost its entire course lay upon the lands about to be purchased by Mrs. Grigsby and Mrs. Fields. Smith, in response to this inquiry, disclaimed any right to the use of said waters. Upon one or two occasions thereafter he did, however, use the same, but the evidence sufficiently shows that when he did so it was upon permission so to do received from the Grigsbys. In the year 1918 the plaintiff herein acquired the Smith tract of land, and shortly thereafter undertook to re-establish