Wishon v. Globe Light & Power Co.

ANGELLOTTI, J.

Plaintiff and defendant Globe Light & Power Company are conflicting claimants of the right to divert waters from points on the Tule River in Tulare County, said points of diversion not being far apart and both being within the United States forest reservation known as the Sierra Forest Reserve. Each claim is based upon proceedings for the appropriation of such water had in accord with the provisions of title VIII of part IV of division second of the Civil Code (secs. 1410, 1422). The trial court found the claim of said defendant to be paramount to the extent of its right to take and divert from points described, fifty cubic feet per second of the water, and that plaintiff’s claim of the right to take and divert water of said river at a lower point, which is otherwise sustained, is subject and subordinate to the exercise of this right in said defendant.

This is an appeal by plaintiff from the judgment and from an order denying his motion for a new trial.

The claim of defendant corporation is based upon a notice of appropriation posted by its predecessor in title, James W. Bursell, on September 26,1902. It is admitted that this notice was in due form, stating all the matters required by section 1415 of the Civil Code and that it was duly and properly recorded in the proper county recorder’s office. The notice did not in terms state that the proposed points of diversion were “within, and a part of, any national park, forest reservation,” etc., but did state that they were located on section 15, township 20 south, range 30 east, M. I). B. & M. It is admitted that it is a matter for judicial notice that all of this section is within and a part of the Sierra Forest Reserve. Plaintiff’s notice of appropriation was not posted until April 18, 1903. This notice also was in proper form and duly recorded. Like defendant’s notice, it did not state in terms that either the place of intended diversion or any part of the route of intended conveyance of water was “a part of” any forest reservation, though it may be conceded that it sufficiently

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described the location to show that it was a part of the Sierra Forest Reserve. A careful examination of the -record has satisfied us that the conclusion of the trial court to the effect that work was commenced under the Bursell notice within sixty days after the posting thereof and prosecuted diligently and uninterruptedly to April 17, 1903, must be held to be sufficiently supported by the evidence. On the last-named day, April 17,1903, United States Forest Supervisor White notified those engaged in the work that they must cease work, no-permit having been obtained from the United States government for the doing of the same. The statute then provided that permission for such purposes must be obtained from the government, and only upon a finding by the proper officer that, the same is not incompatible with the public interest (31 U. S. Stats. 790, [U. S. Comp. Stats. 1901, p. 1584], On March 5, 1903, said defendant had filed its application for such a permit. This application was diligently prosecuted, being resisted by plaintiff, and was finally granted July 28, 1906. From April 17, 1903, to July 28, 1906, practically no work was done under the notice. Within sixty days after the granting of such permit, viz., on September 9, 1906, said defendant resumed work and diligently prosecuted the same to the time of the commencement of this action, September 21, 1906, and thereafter to completion. Plaintiff also seasonably applied for a similar permit, and the same was granted August 30, 1906. No work has as yet been done by him thereunder, but this is a matter of no importance on this-appeal.