Cohen v. La Canada Land & Water Co.

McFARLAND, J.

This is an action to have it adjudged that plaintiff is entitled to the use of certain water, to recover damages for alleged diversion thereof, and to enjoin defendants from diverting the same; and the main issue in the case is whether or not the defendants had the right to destroy or materially diminish the flow of water from certain flowing springs belonging to plaintiff by means of tunnels dug by defendants near and under said springs. The judgment of the court below, although nominally in favor of plaintiff as to some matters, was substantially in favor of defendants on the said main issue. Plaintiff appeals from the judgment and from an order denying her motion for a new trial.

[438]

At the time of the commencement of the action, and at the time of the alleged wrongful acts of defendants, plaintiff was, and for many years prior thereto she and her predecessors in interest had been, the owners of certain described land through which runs a ravine or canon called Snover Canon.

This land is to a large extent agricultural in character, and has been cultivated by plaintiff and her predecessors in orchards, etc., and upon it they have a large house, called Gould’s Castle, with flower-gardens, ornamental trees, etc. In Snover Cañón there flows a small stream of natural water, which was used by her and her predecessors to irrigate their orchards, and which is necessary to their maintenance and for domestic purposes at such house. This stream is fed to a considerable extent by certain flowing springs, some of them along the thread of the stream and others a little above in the banks, the waters of which flow in a well-defined stream down into the cañón. These springs, or at least most of them, are situated a little above the upper line of plaintiff’s land. But about 1891, when the land on which. they are situated was United States unappropriated public land, plaintiff’s predecessors appropriated the waters of the springs and carried them by pipes, etc., to the said house and orchard, and used them there for domestic and irrigating purposes. The court found that such appropriation had been made and had not been abandoned, and that “plaintiff is entitled to use all of the water flowing from said springs, or that may hereafter flow from said springs, or that may flow in any stream down Snover Cañón, and defendants are not entitled to the use of such water flowing from said springs, or that may flow in said stream.” In the latter part of 1898 and the early part of 1899 the defendants went upon the land where these springs are, with the consent of those who then owned that land, and dug several tunnels at, near, and under said springs, and the effect of these tunnels clearly was to entirely dry up some of the springs, and to greatly diminish the flow of water from the others. The water obtained by defendants by and through these tunnels is not used, nor intended to be used, by them for the benefit of the land on which the tunnels were dug, but is taken to other and non-riparian lands for sale. The court found “that part of said waters which were developed in said tunnels would, except for said tunnels, find its way by