Smith v. Hawkins

CHIPMAN, C.

Action to quiet title to certain water and ditch rights. Plaintiffs had judgment, from which they appeal on the judgment-roll alone. There is no brief by respondent on file. Appellants complain that there is a want of certainty in both the judgment and findings “in not fixing by any known method of measuring the amount of water defendant is entitled to take from Wolf creek.” (Citing

Riverside Water Co. v. Sargent,

112 Cal. 230.) And also because the judgment “ignores the rule that the right of defendant is limited to the one hundred inches of water which it is found the defendant has appropriated to a useful purpose.” (Citing

Senior v. Anderson,

115 Cal. 497.)

The answer alleged “that defendant is the owner of lot 25, through which the creek runs, and of all dams, ditches, and water rights thereon”; and “that he is the owner and has a prior right to so much of the water as will supply his ditch with a capacity of five hundred inches, measured under a six-inch pressure.”

The findings and judgment award to plaintiffs a prior right to one hundred and eighty inches, and to defendant one hundred inches, measured under a six-inch pressure, “subject to such prior right of plaintiffs; .... that defendant is the owner as riparian proprietor, subject to the prior right of plaintiffs aforesaid, to all the water of said Wolf creek.” Plaintiffs»express themselves as satisfied with the findings and judgment to this point. But they complain: 1. Of the conclusion of law “that ■defendant is entitled, as appropriator and riparian proprietor, to have the balance (i. e., the water remaining after plaintiffs

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receive their one hundred and eighty inches) of the waters of said creek flow onto and over lot

25,

described in the manner herein”; and

2.

To the judgment “that the defendant is the owner as riparian proprietor, subject to the prior right of plaintiffs aforesaid to all the waters of said Wolf creek.” We are asked to strike this latter clause from the judgment.