Cave v. Tyler

McFARLAND, J.

—This is an action to quiet plaintiffs’ title to the right to the use, and a diversion through a ditch called the Mill Creek Zanja, of all the water of a natural stream called Mill Creek, and its tributaries. Judgment went for plaintiffs, and defendant Hannah S. Skinner appeals from an order denying her motion for a new trial.

Under our views of the case, it is not necessary to examine all of the questions presented, and the facts essential to the point of the decision may be briefly stated.

Mountain Home Creek is a tributary of Mill Creek, and Snow Creek is a tributary of Mountain Home Creek. Appellant owns land through which the two latter streams run, and which is riparian to the same. She acquired her right to this land in 1871, from the Southern Pacific Railroad Company, who acquired it in the same year from the United States government. Since 1888 she has used about fifteen inches of water from Mountain Home Creek, and about two inches from Snow Creek, for the necessary irrigation of her land—upon which she grows trees, vines, and vegetables — and for domestic purposes; and this was not an unreasonable amount of water, as the court finds, for such purposes. At this point the land through which these streams run was part of the public domain of the United States. On Mill Creek, about fiv.e miles below appellant’s land, the respondents and their predecessors have, by means of said Mill Creek Zanja, continuously, since about the year 1853, diverted all the water flowing in said Mill Creek, for irrigation, and other purposes, and their diversion of the water has been open, notorious, and under a claim of right. They claim that by reason of such diversion they have the right to prevent appellant from using any of the water of the tributaries for her purposes as above stated, and the court so decreed.

Respondents do not claim any rights as riparian proprietors. It is not found that they own any land whatever on Mill Creek. They claim solely as appropriators. Of course, under the general law, they acquired no rights by prescription, as against appellant or her predecessors, who were upper riparian proprietors; for a diversion of the water after it had passed her

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land, which did not in any way interfere with- its natural flow over her land, was not an invasion of her right which she was called upon to notice.