Babcock v. C. W. Clarke Co.

PRESTON, J.

Upon this appeal an attack is made upon the judgment as a whole; hence our discussion need not deal with any provision thereof in particular. The sole question is the sufficiency of the evidence to show a dedication to plaintiff’s lands of a water right. The action is to have such dedication declared, the right, when found to exist, measured and the service theretofore existing restored by writ of mandate. Estoppel on the part of defendants to deny dedication is also pleaded. The answer puts in issue both the question of dedication and estoppel. The court below heard the cause and gave judgment for plaintiffs as prayed. This appeal by defendants on the full record followed.

Plaintiffs are land owners in the southern part of Big Valley in Lassen County, owning in the aggregate tillable acreage, susceptible of irrigation and ■ actually heretofore irrigated, of some 600 acres. These lands are of a semi-arid character, very productive under irrigation but of small value without it. Defendant Clarke corporation owns in Modoc and Lassen Counties about 4,500 acres of swamp-land, over and across which Ash Creek, rising in the Warner mountains in Modoc County, flows westerly through a natural channel and finds its way in its march toward the sea, into said Big Valley and later into the Pit River. The Clarke lands are all riparian to this stream but in a state of nature they are too swampy to cut hay crops therefrom and drainage is necessary if this practice is to be employed instead of using them as grazing areas.

Accordingly, in 1897 or 1898, C. W. Clarke and Fredk. Cox, the immediate predecessors in interest of said corporation, entered upon section 27, township 39 N. R. 8 E. M.

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D. M., and upstream on said Ash Creek, a distance of about three-fourths of a mile from their lands, established head-gates and constructed from that point, on an irregular course, a canal several miles in length, sixteen feet in width at the bottom and three feet in depth, meeting the Pit River several miles below the point where the said stream naturally finds said river. Rights of way by deeds for the canal were secured from the various property owners whose lands were traversed thereby, many of whom were predecessors of some or all of plaintiffs. An outlay of some $7,000 was made and some several months were consumed in developing these diversion works. At the point of intake to said canal, said Clarke and Cox duly posted a notice of appropriation on July 29, 1898, and recorded it in the manner prescribed by law. This notice is not only the required notice of appropriation then prescribed by law but it reveals the intention of the appropriators to divert 7,000 inches of the stream and thereafter sell the waters to the public. This notice is in words and figures as follows: