Bree v. Wheeler

McLAUGHLIN, J.

This is the second appeal in this

case—Bree

v.

Wheeler,

129 Cal. 146, [61 Pac. 782]. Upon

[111]

the second trial, had on amended pleadings, the facts found show that up to 1885, plaintiff was the owner of all the water in dispute and that defendant did not acquire title thereto by adverse possession, or otherwise, unless an agreement, affirmatively pleaded in the amended answer and found by the court, operated to give him the right to one-half of the water.

Plaintiff, who is appellant here, contends that, upon the findings the court should have adjudged him the owner of all of said water instead of decreeing that each of the parties owned one-half thereof. The finding relating to the agreement above mentioned is in substantial accord with the averment of the amended answer in that behalf, and in substance is as follows: In 1885, each of the parties hereto was claiming the water in question, and defendant was using it for irrigating his land, against the protest of plaintiff. They talked the matter over, and it was orally agreed,

to avoid litigation and in settlement of their respective rights to the use of the water,

that they should divide it, the plaintiff taking it during the night and the defendant during the daytime. This method of division continued for two seasons, whereupon, plaintiff being dissatisfied, the manner of division was changed by mutual consent, and a measuring box was put in the stream which equitably and fairly divided the water, each party taking one-half thereof both day and night. This method continued for two seasons, but in 1889 plaintiff again became dissatisfied, and wrongfully tore out the measuring box. Then a board was placed in the stream by defendant, at his own expense, at a level, "with two holes of equal size, to divide the water equally, and plaintiff removed this appliance. The defendant then took all the water, leaving none for plaintiff. After the recital of the foregoing facts, the finding reads as follows: "Defendant continued to divide the water as long as plaintiff would permit him to do so. In order to divide the same it was necessary that a measuring box or other suitable appliance be maintained at the point of diversion. Unless such means of division was maintained, defendant could not divide the water. This condition of affairs continued from 1889 until the commencement of this action.”