J. D. Flournoy Co. v. Coffman

WASTE, J.

In an action in equity, brought to determine and define the water rights in a ditch, judgment was entered for the plaintiff, and certain of the defendants have appealed.

In 1885, Henry Masters appropriated 600 inches of water from the South Fork of the Pitt Biver, in Modoc County. He • constructed a ditch, and held title to all the water so appropriated until 1887, when he commenced to convey certain interests therein to contiguous land owners. These owners are the predecessors in interest of the parties to this action, either directly or through mesne conveyances. Among the conveyances made 'by Masters was one in 1887

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of an undivided three-eighths of the water and water rights in the ditch to the defendant George A. Duke. In the same year Duke conveyed eighty inches of the waters he had thus acquired to one John D. Flournoy, plaintiff’s predecessor in interest. This deed was duly recorded, and Flournoy immediately commenced to make use of the waters transferred to him. Many years afterward, Duke and others, apparently assuming that they were the owners of the entire flow of water originally appropriated by Masters, brought an action to have their respective interests determined. The parties came to an agreement, and a stipulation was entered into by them on which a judgment defining their various interests was entered oh November 27, 1901. By that judgment all the water flowing in the ditch was apportioned among the parties to the action, it being decreed, among other matters, that, under certain conditions, Duke was entitled to 130 of the first 400 inches of water flowing in the ditch, and one-fifth of the excess over 400 inches. Flournoy, then owner and holder of the right to eighty inches of water theretofore conveyed to him by Duke, was not made a party to the action. He did not in any way join or participate in the agreement or stipulation or in the judgment entered in accordance therewith. Nowhere in said action, as shown by the record, does any mention of the Flournoy right appear.

In 1919, plaintiff, as successor in interest of John D. Flournoy, brought the present action against Duke and all others claiming rights in the ditch, to have its interest judicially determined. At the conclusion of the trial it was conceded by all the parties that plaintiff had the unquestioned right to eighty inches of water when three-eighths of the water flowing in the ditch amounted to that much, and that practically the only question in the ease was whether that amount of water should be apportioned to plaintiff out of the water rights of all the parties claiming under Masters or his successors in interest, as determined and fixed by the judgment entered in 1901, or should be taken out of the separate portion allotted to Duke.