C. F. Lott Land Co. v. Hegan

HENSHAW, J.

Plaintiff claimed a right of way for a ditch across the land of defendant, and the additional right to carry therein two thousand five hundred inches of water, measured under a four-inch pressure, for use upon its lands. Defendant denied that her intestate’s lands were under the burden of the servitude for such a ditch, denied the capacity of the ditch to carry two thousand five hundred inches of water under four-inch pressure, and asserted that its maximum capacity was five hundred inches. Affirmatively, defendant asserted that the ditch was jointly constructed and was jointly owned by the predecessors in interest of plaintiff and of defendant, and the defendant’s intestate’s right is to all the water flowing in the ditch which may be needed or desired in connection with his land, for the purpose of irrigation, for watering stock, and for domestic use. The court found the ownership of the ditch in plaintiff and the ownership and right to carry therein for use upon its lands two thousand five hundred inches of water. It found further that the right of way for this ditch was approximately thirty feet in width, and as a part of this right of way was the right to enter upon all the lands traversed by the ditch for the purpose of repairing and operating it. It found that plaintiff’s predecessor in interest had alone constructed the ditch, and as to defendant’s intestate held that he had no right to the use of any of the waters; but with the knowledge of and without objection upon the part of plaintiff and its predecessor in interest there had been taken from the ditch by defendant’s intestate ten inches of water for irrigation, and, excepting for this permissive use, defendant’s intestate had no right to any of the waters. It further found that the reasonable value of this ten inches of water was one dollar per acre for the twenty acres upon which it was utilized, or two dollars per miner’s inch for the ten inches so taken.

[171]

The judgment followed these findings. Upon appeal the principal contention is that the findings are not supported.

To these facts it is necessary for an understanding of the controversy to add that the lands now owned by plaintiff were formerly the lands of C. P. Lott, who appeared as plaintiff’s principal witness upon the trial. Big Butte Creek, from which these waters are taken, flows southwesterly. All of the lands affected by this litigation were originally held in single ownership. They were divided for the most part into lots and may be numbered for convenience in designation. To the north lay lot 1, riparian to Big Butte Creek, purchased and owned by C. P. Lott. To the southward lay lots 2, 3, and 4, and below that an unnumbered tract which for convenience we may call lot 5. This was nonriparian to the stream and was also purchased by Mr. Lott. With that purchase ran the grant of a perpetual right of way for a water ditch to carry Big Butte Creek water across the intervening lots 2, 3, and 4. Subsequently C. P. Lott purchased lot 4, thus leaving between his holdings of lot 1 to the north and lot 4 to the south, lots 2 and 3 traversed by the water ditch. The ditch as originally constructed took the water from Butte Creek at the northerly end of lot 1, carried it southwesterly roughly paralleling the line of the creek across lots 1, 2, 3, and 4 on to the unnumbered lot which we have called 5. Unquestionably the easement conferred on lot 5 by this grant and the servitude placed upon lots 2, 3, and 4 were for the construction of a ditch and the carriage of water therein sufficient for the purposes of unnumbered lot 5. This ditch was also used to supply water to the northern lot 1, and of this, of course, defendant cannot, and does not, complain. But Mr. Lott was not given a right of way over lots 2 and 3 to convey water by this ditch to lot 4 which he acquired after his grant with the easement of a right of way for unnumbered lot 5. The defendant’s intestate owned 118 acres of land in lot 2 or 3. It is conceded that this land was traversed by the ditch. In substance the testimony of Mr. Lott is that he exclusively and for his own private use constructed this ditch, aided in the work by certain tenants of his lands, and perhaps—though of this he did not know— by other land owners who were volunteers, but that he always had asserted and maintained his rights as sole private owner. When the ditch carried water, as it frequently did, beyond