Stufflebeem v. Adelsbach

HAYNES, C.

This suit was brought to enjoin the defendants from interfering with or preventing the plaintiff from opening, cleaning out, and using a certain ditch over lands of the defendants, for the purpose of conveying water to the lands of the plaintiff. The court made findings and entered judgment for the plaintiff, and the defendants appeal therefrom and from an order denying a new trial.

The findings are," in substance, that plaintiff and his grantors have for more than twenty-five years been the owners of the north half of the northwest quarter of section 14, in township Í9 south, range 24 east, Mount Diablo base and meridian ; that about the year 1862, one Peter Steinman, then the ■owner of said land above described, constructed a ditch along

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the south side of the north half of the northeast quarter of said section, for the purpose of conveying water to his said land, for the purposes of irrigation and other useful purposes, and from the time of its construction until March, 1894, said ditch was used for such purpose by the plaintiff and his grantors and predecessors in interest, openly, continuously, uninterruptedly, and' adversely, under a claim of title exclusive of any other right; that in the month of March, 1894, the plaintiff entered into a verbal agreement with one W. A. Freeman, that he and the defendant Mary Adelsbach should fill in said ditch where it crosses the northeast quarter of said section 14, upon the consideration that the said Freeman should convey to the plaintiff a right of way for a ditch across the south half of said northeast quarter, and thereupon said Freeman and defendant Mary Adelsbach caused said ditch to be filled in where it crossed said northeast quarter; that said Freeman has not, nor has any person for him, or for the defendants, conveyed to plaintiff said or any right of way for said ditch across said land; that on or about July 21, 1897, the plaintiff entered upon the land where the ditch had formerly been, and attempted to clean out the ditch, but was prevented from doing so by the defendants Mary and John Adelsbach and Ralph and Frank Hess, who, by force and intimidation, compelled plaintiff to discontinue work in cleaning out or opening said ditch; that plaintiff had not abandoned the ditch, or his right to use it, and that it is necessary for the plaintiff to have it cleaned out and opened, for the purpose of irrigating his land; and that it is not true that plaintiff had not the right to use the ditch, except by a lease or permission from defendants.