White Mallard Outing Club v. Reclamation District No. 1004

PRESTON, J.

The judgment appealed from must be affirmed and it is so ordered. Our reasons are to be found in the following observations:

[368]

Prior to 1917 Moulton Irrigated. Lands Company and Gould Land Company, corporations, were the owners of a large area of land in Colusa County, the easterly boundary of which was Butte Creek. In said year these companies entered into an agreement with William G. Henshaw to convey to him that portion of said lands, consisting of about nine hundred acres, bounded on the north by property of the Murdock Land Company, on the east and south by the waters of Butte Creek and on the west by the Crocker levee and by a slough known as Drumheller slough, leading southeasterly from the south end of the levee to Butte Creek. This tract lay between Butte Creek and the remaining lands of the corporations.

In conveying these lands the then owners desired to retain for their remaining lands their riparian and other rights in the waters of Butte Creek, together with the privilege of conducting said waters across the lands to be conveyed and, accordingly, it was provided that they were to have the privilege of constructing and maintaining a canal, not to exceed fifty feet in width at the bottom, westerly across said lands, connecting said Butte Creek with the east side barrow pits of said Crocker levee. The agreement of sale also provided for the dredging and deepening of the barrow pits from the point where the proposed canal would cut it, southerly to the point where it connects with said Drumheller slough. The slough itself was also to be cleaned and deepened, all for the purpose of drainage into Butte Creek of surplus waters falling or used on the corporations’ lands. Said corporations likewise reserved the right of private navigation up and down said slough, with the added privilege of entering upon the lands to be conveyed for improving and maintaining said diversion and drainage works.

These improvements, substantially as provided for, were constructed prior to 1918 and water was conducted through said canal to said barrow pits and there diverted and used upon the corporations’ lands. But to properly use said waters it was necessary to cross the said Drumheller slough and this, of course, in view of the slope and deepening thereof, required the construction of a dam across the slough. This, too, was erected prior to 1918. Later, and in 1924, a more permanent and perhaps higher dam was installed, with a large pipe underneath to be used in operating it and