Gutierrez v. Wege

[732]

GRAY, C.

This action is brought to quiet title to the waters of Casitas Creek, a small stream having its rise in a spring on the land of defendant and flowing for some distance into the adjoining land of plaintiffs. The judgment in the-case is as follows:—

“1st.

That the defendant owns and is entitled to the sole- and exclusive use of all the waters flowing from that certain spring situate upon the N. W. £ of the S. W. ^ of section 29, described in defendant’s amended answer, and to all waters flowing in said Casitas Creek above the reservoir situated near the south line of said land and in the bed of said creek;

“2d. That of the waters arising and flowing in said creek below said reservoir, the plaintiffs as riparian owners are entitled to 40/41 thereof, and the defendant as riparian owner is entitled to the remainder;

“3d. That the defendant and his agents and employees are-perpetually restrained and enjoined from hereafter obstructing or polluting, in any wise, the said Casitas Creek below said reservoir; and

“4th. That neither party recover his costs or disbursements, in this action. ’ ’

There are two appeals before us from this judgment; the plaintiffs appeal from the first paragraph thereof, and defendant appeals from the second, third, and fourth paragraphs.

We are of opinion that the first paragraph of the judgment,, wherein it is decreed that the defendant “owns and is entitled to the sole and exclusive use of all the waters,” etc., is not warranted by the evidence taken at the trial.

Something upwards of five years before the commencement of the action defendant had constructed a reservoir on his land in the channel of the creek in question through which ran the waters from the spring. From this reservoir he had constructed small ditches on each side of the creek through which he conveyed water for the purpose of irrigating a few acres; of his land, not more than four or five acres at the outside-Defendant had also dug out the spring and developed moro water than naturally flowed from it. He had also laid pipes from the spring to his house, and by that means conducted water thereto for domestic use. He had also been accustomed to water horses and cattle at the creek below the reservoir,