Merritt v. City of Los Angeles

SHAW, J.

The plaintiff sued for the purpose of obtaining an adjudication of the alleged conflicting claims of the plaintiff and defendant, respectively, to the use of the water of Haiwee Creek in Inyo County, and to enjoin the defendant from claiming or using the same and from interfering with plaintiff’s use. The defendant in its answer alleged that it is the owner of the first and paramount right to take from said creek all the water flowing therein to the extent of three hundred inches constant flow, under a four-inch pressure. Upon the trial the evidence showed that the normal flow of the creek did not exceed seventy-five inches, although for about a month of each year while the mountain snows were melting, it far exceeded that quantity. The court found that the defendant is the owner of the right to take all the water therein to the extent of seventy-five inches and that the plaintiff owned no interest therein. There was no affirmative adjudication of the defendant’s title. The judgment merely declares that the plaintiff shall take nothing by his action and that defendant recover of him its costs.

The record on appeal appears to have been prepared in the manner provided in sections 953a and 953c of the Code of Civil Procedure. It contains no copy of the notice of appeal. In the brief for plaintiff, counsel say that appeals were taken from the judgment and from an order denying a new trial. This statement is not questioned by counsel for defendant and no motion to dismiss the appeals has been made. Consequently, we ignore the objection and assume that the appeals were properly taken and that we have jurisdiction accordingly. Inasmuch as there has recently been on the part of many members of the profession who have chosen this mode of presenting the record, neglect in observing the requirements

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of the statute availed of, we take this occasion to state that sections 951 and 952 obviously apply to records prepared under sections 953a and 953c, as in other cases, and that a copy of the notice of appeal is a necessary part of every record on appeal and should be included in the transcript in all cases.

The plaintiff on July 18, 1905, filed in the United States land-office a declaratory statement under the Desert Land Act to obtain patent for a half section of land situated several miles distant from the place of diversion of the water in question. On July 20, 1905, he posted a notice of appropriation on Haiwee Creek claiming five hundred miner’s inches of the water for use on said land. Nothing further was done in pursuance of this notice and, under section 1419 of the Civil Code, it lapsed after sixty days, so far as subsequent