Cory v. Smith

SEA WELL,, J.

This action involves a contest between lower and upper riparian owners over the waters of Miner Creek, a small stream in Siskiyou County. Defendants and cross-complainants, John P. Smith and Prank Smith, upper riparian proprietors, appeal from a judgment decreeing that plaintiff, Alice G. Cory, is the owner of fifty inches of the water in said Miner Creek measured under a four-inch pressure and that this right is superior to the interest of defendants, and enjoining and restraining defendants from diverting any of the waters of Miner Creek or its tributaries when there is less than fifty inches measured under a four-inch pressure flowing to and upon the lands of plaintiff.

The judgment of the court below was based on a finding that plaintiff, the lower owner, had a superior right to fifty inches of the water of said stream by reason of an appropriation of such a quantity by plaintiff’s predecessor in interest in 1869 or 1870. The court further found that the upper riparian land owned by defendants was patented to their predecessor in interest by the United States government in 1889, which was subsequent to the date the appropriation of water was found to have been made by plaintiff’s predecessor in interest on the lower lands. The court did not find, however, that the diversion by plaintiff’s predecessor in 1869 or 1870 was upon land which then constituted a part of the public domain of the federal government. The absence of such a finding is fatal to the affirmance of the judgment. A diversion or appropriation of water upon land held in other ownership than that of the United States government gives the áppropriator no rights as against a subsequent purchaser from the United States government of riparian land situated upon the stream above the point of diversion.

(Cave

v.

Tyler,

133 Cal. 566 [65 Pac. 1089];

Holmes

v.

Nay,

186 Cal. 231 [199 Pac. 325];

San Joaquin & Kings River Canal & Irr. Co., Inc.,

v.

Worswick,

187 Cal. 674 [203 Pac. 999].) The declarations in the findings that the predecessors in interest of plaintiff “legally” appropriated said water in 1869 or 1870 and have used said waters “under an honest right to claim same and of right so to do ever since the year