Filippini v. Hewlett

HENSHAW, J.

This controversy is between the plaintiffs, lower riparian proprietors, and defendants Hewlett, upper riparian proprietors, over the use of the waters of Huichica Creek. The appeal is from the judgment and from the order denying’ defendants a new trial.

The waters of Huichica Creek, flowing first through the lands of defendants Hewlett, were used by them, and the unused portion passed on to the lower lands of plaintiffs, where they were consumed for domestic purposes and for the watering of stock. In the warm and dry months of June, July, August,

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September, and October of each and every year there was never a surplus of water above what was required for these purposes, and in many years a deficiency and shortage. The Hewletts had originally taken their water from the main stream, but subsequently they had availed themselves of the waters of the west branch of the creek. Shortly before the commencement of this action they dammed the main stream, posted notice of appropriation of all the waters in it, filed the notice for record, dug a ditch, and proceeded to carry these waters to their lands for the irrigation of alfalfa. The result was the immediate cessation of the flow below, complaint by the lower riparian proprietors, with the statement by the Hewletts that they would find their claim presented in the recorder’s office, and if plaintiffs desired to stop them from so diverting the waters they would have to proceed by injunction. This they did, and the injunction was granted. Against the judgment it is first contended that the portion defining the rights of Cleora M. Hewlett, owner of the upper riparian land, is indefinite and uncertain. That portion of the judgment so attacked is in the following language:

“That the defendant, Cleora M. Hewlett, is justly entitled to take and use such a quantity of water flowing in said creek, through the lands of the said defendant, which, in addition to the water now taken from said west branch thereof, shall be required for all the natural or domestic uses and purposes appurtenant to the lands of said defendant which are within the watershed of and drained by and riparian to said Huichica Creek (which said lands are described in the complaint in this action, and are the lands upon which the said defendant now resides), including water for household and domestic uses and purposes, for watering stock, for irrigating lawns and gardens adjacent to the dwelling-house on said lands.”