Cheda v. Southern Pacific Co.

ALLEN, P. J.

The action was one by plaintiff to restrain the defendants from obstructing or continuing to obstruct a certain creek, and from diverting water therefrom, and for damages. The facts are these: Plaintiff is the owner of a tract of land in - San Luis Obispo County through which Stenner Creek runs. This Stenner Creek is a stream formed from various tributaries, the two principal ones arising at certain springs, one thereof from Serrano spring and the other from Dyer spring. Dyer spring is situate upon land owned by the defendant corporation, and from it a stream flows through defendant’s lands and those of other proprietors until its junction with the waters flowing from Serrano spring, from which point the stream is known as Stenner Creek. Plaintiff’s land, lies below the junction and below lands belonging to one Herrera. The defendant corporation, in the year 1894, built a dam and commenced the

[375]

diversion of water from the tributary flowing from Serrano spring, and continued the use of this water for purposes other than that of irrigation from that date until 1903, at which time, having acquired the lands upon which Dyer spring is situated, it abandoned the rights acquired below Serrano spring and commenced the diversion of water arising from Dyer spring for use other than for irrigation. This last-mentioned flow of water, like that from Serrano spring, if unobstructed, would flow down and become part of the waters of Stenner Creek. Plaintiff as a riparian owner was entitled to a reasonable use of the waters of this last-named creek. In her complaint she alleged that the water diverted by defendants varied daily, but that it had always amounted to between three hundred thousand and four hundred thousand gallons each day; that the result of such diversion by defendants has been to deprive her land of waters necessary for domestic use and for irrigation. Defendant corporation in its answer admitted its diversion and use of water, as alleged, but denied that it used at any time in excess of eight thousand five hundred gallons a day. In another portion of the answer it is stated that the extent of the use of the water was at least nine thousand gallons a day. The trial court found that for more than five years previous to the commencement of the action—that is to say, from March, 1894, to November 15, 1903—the defendant corporation continuously, uninterruptedly, and adversely appropriated, diverted, and used the waters of said Serrano spring, each and every day during said period, to the extent of twenty-eight thousand gallons; that in 1903 the defendant released all the waters of said Serrano spring before used by it, and ever since said date last mentioned all the waters of Serrano spring have been permitted to flow down the creek. By finding 10 it is found that on November 15, 1903, the defendant by dams diverted the water from the stream flowing from Dyer spring and converted, carried away, and consumed a quantity of water less than twenty-eight thousand gallons per day, in addition to some other water which the court finds it had no right to use. In another finding the court finds that from November, 1903, the defendant has appropriated, used, and diverted from said springs continuously, uninterruptedly, and adversely the waters flowing from said Dyer spring to the extent specified