Gutierrez v. Wege

McFARLAND.

This action- was brought to quiet title to the waters of a small stream called Casitas Creek, and to have the proportionate rights of the parties to said waters definitely determined. The court made findings and rendered a judgment, and from a part of this judgment defendant appeals. No errors of law are assigned, and the only grounds for a reversal are that certain findings of fact are not supported by the evidence. Each of the parties is the owner of a tract of land riparian to said creek, defendant’s land lying immediately above and adjoining the land of plaintiffs. The creek rises in a spring on defendant’s land, and flows through his land onto the land of plaintiffs, and runs through plaintiffs’ land about three fourths of its length, when it is all finally absorbed by the soil. Defendant having claimed all the waters of the spring and creek, and threatened to divert the same unless plaintiffs pay him certain money, plaintiffs commenced this action for an injunction against the infringement of their riparian rights and for a decree settling

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the proportionate ownership of the parties of the waters of the creek, and also prohibiting defendant from maintaining a certain nuisance,—namely, a manure pile in the creek. Defendant set up his right by prescription to all the waters of the creek, claiming that for more than five years before the commencement of the action he had continuously, notoriously, and adversely to plaintiffs and all the world, diverted all of the said water onto his own land and used it there, and prevented any of it from flowing down through the lands of plaintiffs. The court found that defendant had so diverted one miner’s inch of said water through an iron pipe, and had acquired a right by prescription to said one inch of water, and also found that defendant had not diverted or acquired any right to the waters of said creek other than the said one inch. Defendant contends that this finding, except as to said one inch, is unsupported by the evidence, and that the evidence shows that he had adversely diverted all of the water of said creek as claimed by him. This contention of defendant as to the finding of his claim to all the water by prescription substantially includes all of his case on appeal; for it will be found on examination that his other points as to findings not being sustained by the evidence all point to and are based on the contention that the finding as to .prescription is unwarranted. But, in our opinion, there was ample evidence to support the finding that there was no: adverse diversion of the water of the creek" other than the one inch diverted through the iron pipe. There was, no doubt, some conflicting evidence on this point; but there was material testimony that notwithstanding the diversion through the pipe there was always water flowing down the stream onto plaintiffs’ land.