Steinberger v. Meyer

GAROUTTE, J.

This litigation involves the respective rights of the parties to the use of the waters of a certain creek known as Willow Ranch creek. Plaintiff in his complaint alleged a diversion of these waters by defendants without right,

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and sought a permanent injunction, with damages. Defendants admitted a diversion of twenty-five inches of the waters of the creek, and claimed the right to so divert. They also> claimed rights as upper riparian owners, and rights by reason of an artificial increase of the flow of waters of certain springs which were situated upon their land, and which to some extent (possibly quite limited) formed the source of supply of the aforesaid creek. The findings of fact do not squarely meet all the issues, and the judgment rendered is not clear and explicit as to the respective rights of these parties in the waters involved.

The judgment rendered provided: "1. That plaintiff, as against defendant, is the legal and lawful owner in and to all the water of Willow Ranch or Steinberger creek, and every part thereof and has the legal and lawful right to divert at any and all times all of the water from said creek and use the same for irrigation and domestic use and purposes;

2.

That defendant as against plaintiff is lawfully entitled at any and ‘all times to the free and unobstructed flow and to the diversion and use of sufficient water to and from said springs to properly and thoroughly irrigate in the aggregate three acres of land and for domestic use and purposes.” Nothing is said in this judgment as to the injunction prayed for and each party is allowed his costs. By respondents’ brief it is asserted that the claim made in their answer to a right of diversion of twenty-five inches of water of Willow Ranch creek was abandoned during the trial. But we find no suggestion to that effect in the record. The present appeal is taken by plaintiff from the judgment, without a bill of exceptions.

We will not enter into a consideration of the sufficiency of the findings of fact to support the judgment rendered, for we have concluded that the judgment itself is of such a character as to justify plaintiff in appealing from it. Laying aside the question of a perpetual injunction—to which plaintiff would seem to be entitled if defendants were, in fact, diverting twenty-five inches of water from the aforesaid creek without right—more serious questions present themselves. The various parts of the judgment must be read together, and, taken as a whole, it is not satisfactory or explicit. The first portion of