Cederburg v. Dutra

CHIPMAN, P. J.

Action for perpetual injunction restraining defendant from constructing or maintaining a dam in and across a certain channel. Plaintiff had judgment from which and from the order denying his motion for a new trial, defendant appeals.

[573]

The court, among others, made the following findings:

“IV.

“That there is a watercourse having its source in Kings river at a point about five (5) miles north of the lands of plaintiff, extending in a southerly direction down to the lands of plaintiff, thence in a southeasterly direction over and across the. lands of plaintiff, and down to and over and across the lands of defendant, and thence emptying the waters which flow therein into Cross creek at a point about two (2) miles southeast of the lands of defendant. That at the source or head of said watercourse, it has precipitous banks ranging from two (2) to five (5) feet in height, and said watercourse has a well-defined channel from its said course down to and over and across the lands of plaintiff; and down to and over and across and beyond the lands of defendant.

“V.

‘ ‘ That during the irrigating and winter and spring seasons of each year, large quantities of water run into and flow along and in and through said channel, and over and across the lands of plaintiff, and thence along and through said channel down to and over and across the lands of said defendant; and that said watercourse has been in existence and maintained over and across the premises of plaintiff and the premises of said defendant for more than six (6) years last past.

“VI.

“That in the northeast corner of said quarter of land owned by said plaintiff, there is a depression or swale and that during the irrigating and winter and spring seasons of each year, large quantities of percolating water accumulates and has accumulated in and upon said premises of plaintiff and that this swale is connected with and forms a part of the channel mentioned and described in Finding IV herein, and that the said plaintiff in or about the year 1896, for the purpose of draining and freeing his said lands from said percolating waters, and causing the water that flows in the said channel which spreads out in said swale on said plaintiff’s land to flow in a more direct and speedy manner over plaintiff’s said land and by a shorter route, dug and constructed an artificial ditch beginning at the east line of his said premises and from a point in