Town of Suinsun City v. De Freitas

CHIPMAN, C.

Action to enjoin defendant from obstructing the flow of water from certain springs, situated on defendant’s lands to the lands of plaintiff. Plaintiff had judgment perpetually enjoining defendant from obstructing or diverting “the flow of the waters from the three or four springs situated on” defendant’s lands, “except so much of said waters as defendant may necessarily use for domestic purposes, and also so much of said waters as defendant may have need of in irrigating the six acres of berries, fruits, and vegetables during the months of February, March, and April, and all of the waters of said springs during the months of

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May, June, July, and August o£ each year, which are cultivated by defendant on his said land.” Defendant appeals from' the judgment and from the order denying his motion for a new trial.

Plaintiff and defendant are owners of contiguous tracts of land situated on the mountain-side north of Suisun. The land of plaintiff is used as a site for waterworks to supply the town of Suisun, and several springs situated on this land were developed and form the principal water supply for the town. The springs on defendant’s land were higher up on the mountain-side and the court found (finding 3): “That three or four springs of fresh water have their rise and exist on, and from time immemorial have existed on, said tract of land owned by defendant, and the waters of said springs have collected together on said tract, and from time immemorial have flowed through a natural channel to and upon the tract-owned by plaintiff”; that defendant and his grantor have dug out and straightened this channel, but it has not prevented or diminished the flow of water from said springs. Finding 4 is, that defendant and his predecessor for more than twenty-five years continuously used so much of the waters of said springs-during the months of February, March, and April as was necessary for domestic purposes and irrigation, and that during the months of May, June, July, and August of each year they used the whole of the water for the purpose of irrigating about six acres of land planted to berries, fruit-trees, and gardens; that except as used for domestic purposes and for irrigation as aforesaid, all the waters flowing from said springs flowed uninterruptedly (except as afterwards found by the court) through said natural channel to plaintiff’s land and helped to feed the springs that exist on plaintiff’s land, and since 1897 have helped to feed the tunnels, drains, and other works of plaintiff connected with its waterworks. Finding 5 is, that in December, 1898, defendant obstructed the flow-of water through said channel, and diverted, and still diverts, some of said waters from flowing to plaintiff’s land through said natural channel. Finding 7 is, that defendant and his grantors have not for twenty-five years, or at all, appropriated and used all the waters of said springs on defendant’s land, and that they have used said waters only as found above.