Davies v. Angelo

BURNETT, J.

The principal contention of appellants relates to the sufficiency of the evidence to support the findings of the lower court.

Those to which the specification' of insufficiency is addressed are substantially as follows:

1. That the use of the waters of McAdams creek by defendants has never been adverse to the rights of plaintiffs for a sufficient period of time to give them an adverse right thereto; 2. That during the time (twenty years) plaintiffs and their predecessors owned and cultivated the so-called Davies ranch, they owned and used twenty-five inches, measured under a four-inch pressure, of the waters of McAdams creek and its tributaries (except Clear creek) for irrigating said lands, and that such use and appropriation are prior to any rights of defendants herein; 3. That such use of said waters was made each year from April 1st to October 1st, and that it was necessary for the cultivation of said lands; 4. That

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in the year 1904, defendants wrongfully and unlawfully diverted all of the waters from said creek and deprived plaintiffs thereof; 5. That during the period of time covered by the diversions by defendants there was sufficient water flowing in McAdams creek to have reached plaintiffs’ ditches; 6. That the acts of defendants caused plaintiffs damage in the sum of $200, and that the continuance of the diversion by defendants of the water would cause great and irreparable damage and injury to plaintiffs.

We are not concerned, of course, with the question of the preponderance of the evidence or as to the substantial character of the showing made by the defendants, but the single inquiry is, Does the record contain-any evidence tending to support said findings? This question must be answered in the affirmative.

Without segregating and considering it under its appropriate and corresponding findings, we make the following quotations from the testimony of the witnesses: Lewis Davies said: “I have been familiar with the Davies ranch on McAdams creek since 1871. Every year through the irrigating season we have used the water and have raised a crop, excepting perhaps in 1881 or 1882, when we had a lawsuit with the miners for this same water. Without irrigating water the garden and fruit crops would dry up and would not mature. The water we used for irrigating was from McAdams creek and a drain known as the Oak Grove drain. We had two irrigating ditches from the creek for irrigation of garden, orchard, alfalfa and hay. In the spring, when the water was plenty, we used one hundred and more, but when the water gets low in the creek we use what the miners have used above us, and that varies from twenty to thirty inches. We would use all the water flowing in McAdams creek above Clear creek. Last year there was a very large crop of apples on the trees, and if we had had water we would have had good apples.