Weidenmueller v. Stearns Ranchos Co.

COOPER, C.

This appeal is from the judgment. It is claimed that the findings are contrary to the admissions of the pleadings, and that they do not support the judgment.

The complaint alleges, in substance, that the defendant corporation is the owner of a canal known as the North Riverside and Jurupa canal, subject to the right of plaintiff to carry and receive waters from and through the same. That plaintiff is the owner of four and thirty-three hundredths inches of water, measured under a four-inch pressure, and of the right to convey the same through the said canal, and take the same therefrom, and that plaintiff has continuously received and taken the said water from the canal, for the purpose of irrigating his fruit trees upon the land described in the complaint, upon the same level and in the same manner as in the year 1890, and has at all times claimed the right to do so. That plaintiff has the right to take his said water from said canal upon the same level as heretofore, and that defendants threaten to, and will, unless restrained by the court, lower the grade of the canal, so as to prevent plaintiff from taking out water on said level, or at all, except on so low a level as to prevent the irrigation of about one acre of plaintiff’s land.

Judgment is prayed for an injunction to prevent defendants from lowering the said canal and thus preventing plaintiff from taking his water upon the same level as heretofore. The pleadings were verified.

It is claimed that the answers do not deny plaintiff’s ownership of the water, his right to carry the same through the canal and receive it therefrom, that the water has been continuously taken and used by plaintiff since 1890 upon the level as then used, and that this level is no higher than necessary to enable plaintiff to irrigate his premises. Plaintiff evidently bases his claim to receive the water from the canal upon continuous adverse user for five years.

[625]

The answers deny that the plaintiff has continuously used said water for as much as five years, or that any right of plaintiff to take the waters from said canal has been recognized by defendants, or that plaintiff has the right to take any water from said canal, except by permission of defendants, under proper regulations, or that plaintiff has any right or easement in said canal, except under written deeds from the Jurupa Land and Water Company, and aver that said right is subject to the proper and reasonable rules and regulations of defendant corporation. The answers further aver affirmatively that on the twenty-third day of May, 1888, the Jurupa Land and Water Company, a corporation, went into the exclusive possession and management of said canal, and that defendant corporation has not been in the possession or control thereof since 1889. That in March, 1894, the possession and control thereof was let to tenants, who have ever since been in the possession thereof and managing the same.