Churchill v. Rose

SMITH, C.

The plaintiff recovered judgment in the court below for the sum of one thousand dollars damages for the diversion of waters of Butte Creek from the plaintiff’s lands; and for an injunction perpetually enjoining the defendant from diverting the waters of the creek from the creek or its tributaries. The defendant appeals from the judgment and from an order denying her motion for new trial.

The title of the plaintiff to the use of the waters of Butte Creek, to the extent of one thousand inches, is not disputed; and it is found that during each of the years 1898 and 1899— while there was less than that amount—the defendant diverted from the creek, and from a spring on the defendant’s land tributary thereto, 165 inches of water measured under a four-inch pressure; and that the plaintiff’s crops were thereby damaged to the extent of five hundred dollars in the year 1898, and to the like extent in the year 1899. It is claimed by the appellant,—!. That she was not concerned with the diversion of the water occurring in the year 1898, or with that occurring in the year 1899; 2. That the finding that the plaintiff was damaged in the sum of five hundred dollars for the year 1899 is not supported by the evidence; and 3. That the judgment was erroneous in so far as it enjoined the defendant from diverting the waters of a spring on her land.

1. With regard to the first point, the defendant, it appears, did not become the owner of the land upon which the water was diverted until May 3, 1899, and there was no evidence to connect her with the trespasses previously committed in the year 1898. With regard to the year 1899, the evidence shows

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that the water was diverted by her agents in charge of her land, and for its benefit, which sufficiently supports the finding that the diversion was by her.

2. With regard to the damages, the evidence, we think, was insufficient to show that the plaintiff’s crops were damaged in the year 1899 to the extent of five hundred dollars, as found, or in any other definite amount. The amount of water diverted (165 inches) is not disputed. The period of the diversion is not found, but it does not appear from the evidence that there was any diversion except from the twenty-eighth day of June to the tenth day of July,—the defendant ’s' dam having been destroyed by the plaintiff at the latter date. The amount of water usually flowing in the stream is from one to two thousand inches, but it is alleged in the complaint that during the years 1898 and 1899 the flow of the water did not exceed from four hundred to six hundred inches; and from the evidence it appears that it was less than the former amount. As to the amount of the damage to the plaintiff’s crops, the only testimony is that of the witness Martin, which is to the effect that there was a shortage in the plaintiff’s hay crop of six hundred tons and a greater deficiency in the pasture; and he estimates the loss at $6.50 per ton and one thousand dollars for the loss of pasture. But there is nothing to show how much of this loss was due to the defendant’s diversion' or how much to the natural failure of the water. He further testifies that for the diversion of the water for the whole irrigating season he would estimate the loss at $6.50 per inch of the water; and also that the diversion of the water through the months of June and July would be equivalent to its diversion through the whole season. But the actual diversion, so far as shown, was from the twenty-eighth day of June to the tenth day of July only, and no estimate is given for the loss occasioned by the diversion for that period. There is therefore no evidence in the case from which the damages can be estimated.