Centerville & Kingsbury Irrigation Ditch Co. v. Sanger Lumber Co. (1903) · DecisionDepot

Centerville & Kingsbury Irrigation Ditch Co. v. Sanger Lumber Co.

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Sep 29, 1903 No. S.F. No. 2537.Published

Before: Henshaw

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Holding. The court held that the defendant acquired a prescriptive right to maintain its flume because the obstruction existed for more than the statutory period, and the plaintiff's failure to timely challenge the structure allowed the use to ripen into a prescriptive title.

Issues

Whether the defendant's flume constituted an actionable obstruction under the terms of the grant.
Whether the defendant acquired a prescriptive right to maintain the flume despite the plaintiff's claims of obstruction.
Whether subsequent enlargements of the plaintiff's ditch or unauthorized promises by an employee defeated the defendant's prescriptive right.

Disposition. reversed

Quotations verified verbatim against the opinion

“It is indisputable that, whether the ditch was carrying much or little water, if the flume was an obstruction at the time the action was commenced, it was an obstruction from the day it was built.”

Synopsis

The facts are stated in the opinion of the court.

HENSHAW, J.

This action was brought praying injunction against defendant from maintaining its flume across the plaintiff’s ditch “in its present condition, of in such a condition that it obstructs and impedes the flow of water

[387]

in plaintiff’s said ditch.” Judgment passed for plaintiff, and defendant appeals from that judgment and from the order of the court denying its motion for a new trial.

Upon October 5, 1889, the plaintiff herein granted the Kings River Lumber Company, to whose interests this defendant has succeeded, a right of way twenty-five feet in width for a flume across plaintiff’s ditch, or canal, at two places on the surveyed and located line of the flume, one being the place in controversy. The grant provided that the crossing should “be made in such a way as not to stop or impede the flow of all the water which the canal, or ditch, may or can carry, or any future enlargement of said canal, or ditch. ’ ’ The grant further provided that the grantee, its successors and assigns, might construct and operate its flumes at such places “by such means, in such manner, and at such times as to it or them may be convenient.” In the same year the flume in controversy was constructed where it now stands. The ditch at that point is about forty-five feet wide, but the flume is constructed diagonally across the channel of the canal, and is one hundred and sixty-four feet in length. The superstructure is supported by posts four by six inches in diameter and sixteen feet apart. The posts are arranged in sets of two,—an upper and a lower post,—the lower being directly down-stream from the other, and about ten or twelve feet distant. The court found that “the flume is so constructed as to obstruct and greatly impede all the water flowing in plaintiff’s ditch; that plaintiff has enlarged its ditch within five years last past, and has increased the volume of water flowing therein within five years last past, and the effect of the posts and flume as now constructed is to obstruct and impede the flow of all the water flowing in the ditch, and the posts do obstruct and impede the flow of all water of the ditch, and will obstruct and impede the flow thereof so long as the posts and flume remain in their present condition.” Appellant’s first attack upon this finding is based upon its interpretation of the contract. It is contended that the evidence does not show that

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Of these, the first is, in substance, that the continued use by defendant was permissive as licensee, because, upon plaintiff’s protest, defendant’s manager repeatedly declared that he would in time cause a truss-bridge to be thrown across the canal to support the flume. But, in the first place, these alleged promises were not made until the fall of 1897, eight years after the flume was constructed, and long after the statute of limitations had run in favor of the defendant’s title. In the second place, this promise was not the promise of the defendant, but of one of its employees, and it not only does not appear that he was acting with authority of the defendant, but it does affirmatively appear that he did not have the authority on behalf of the corporation either to make the promise or to do the work which it involved. These promises had been made by Mr. Smith, the then manager of the company. The only attempt to show his authority was by the testimony of Mr. Boole, the manager who succeeded Mr. Smith. But Mr. Boole testified that he occupied the same position that Mr. Smith had formerly occupied; had general supervision of the flume and acted under the control of the board of directors, but that he did not have authority to make an expenditure such as would be involved in trussing the flume without authority from the board of directors. This is not evidence to establish the fact that Mr. Boole’s predecessor did have such authority. The second proposition advanced by respondent in support of the finding of the court against the plea of the statute of limitations seems to be based upon the language of the grant, that the flume should be constructed in such a way as not to stop or impede the flow of all the water which “any future enlargement” of the ; canal, or ditch, might carry, and it is found by the court, as above quoted, that the plaintiff, within the five years last past, has enlarged its ditch and increased the volume of water flowing therein. Upon this it may be said, in the first place, that the evidence of enlargement is to the last degree unsatisfactory. Mr. Parlier, plaintiff’s president, testified that the ,■ ditch had not been altered above the flume, except that the ) bottom had been washed out, but that it would carry more . water than it did seven or eight years ago, because some of the drops had been left out below the flume. And finally,

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Synopsis

HENSHAW, J.

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