Omnes v. Crawford

SHENK, J.

This is an appeal from a judgment enjoining the defendant from maintaining a dam or artificial obstruction in the channel of Logan Creek, sometimes called Rogers Creek, in Santa Cruz County. It was alleged by the plaintiffs and found on sufficient evidence that the plaintiffs Santos Omnes and Elsie Omnes, his wife, are the owners of lands riparian to said stream and have been such owners and have resided on said land since 1906; that said plaintiffs have no other water for domestic purposes than the waters of said stream and that such waters are necessary for their domestic and household purposes; that the defendant is the owner of lands bordering on said stream above the lands of the plaintiffs; that within ninety days prior to the commencement of this action the defendant constructed and now maintains a dam in the bed of and across said stream at a point above the lands of the plaintiffs thereby completely shutting off the flow of the waters of said stream and preventing the same from flowing in its natural channel down to the lands of the plaintiffs, thus wrongfully and entirely depriving the plaintiffs of the use of said waters to their irreparable damage and injury. The court further found that the defendant “is diverting much of the impounded waters of said stream to lands not riparian to said stream, and that if such waters were not so diverted, there would be

[768]

sufficient water pass over the lands of the plaintiffs to supply plaintiffs’ demands.” The judgment ordered that the defendant be “perpetually enjoined and restrained from maintaining, erecting, having or keeping, in the channel of the stream ... at any point above the lands of the plaintiffs, any dam or artificial obstruction of any kind which will prevent, or otherwise interfere with the flow of sufficient water down said stream to the lands of plaintiffs for their household and domestic use.”

It is the contention of the defendant (1) that plaintiffs did not establish their right to the use of any of the waters of the stream and (2) that the judgment is fatally uncertain in that it does not adjudicate the amount of water to which the parties are, or either of them is, entitled.

As to the first point the evidence was conflicting as to whether the lands of the plaintiffs are riparian to the stream and while it was shown that said lands bordered on the stream only to a small extent, the extent to which they so bordered was sufficient upon which to establish 'riparian proprietorship in the plaintiffs and to support the finding to that effect.