Collins v. Gray

SHAW, J.

This is an appeal from an order denying the defendant’s motion for a new trial. An appeal from the judgment was also taken and the judgment was affirmed by the district court of appeal for the second district.

(Collins

v.

Gray,

3 Cal. App. 723, [86 Pac. 983].)

The object of the action was to establish the plaintiff’s right to the use of a pipe-line extending through the defendant’s land for the purpose of carrying water therein to the land of the plaintiff. It is contended upon this appeal that certain of the findings are not supported by sufficient evidence.

The complaint alleges that the plaintiff is the owner of a certain tract of land containing thirty acres, together with 6.2 inches of water, continuous flow, from the water system of the Riverside Highland Water Company, which entitles plaintiff to the use of that quantity of water for irrigating said land, in such manner, under such conditions and at such times as should be fixed by the rules of the company and the custom of the water users under that system, that by the customary method of distribution the water to which land under the system is entitled, is cumulated so that instead of using the flow continuously, each owner takes the water to which he is entitled at regular monthly intervals in turn for a fixed period, that the customary run of water for the plaintiff’s premises was forty inches for four days in each month during the irrigating season, and that the premises had been irrigated in that manner from the said water system for the last ten years or

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more. These allegations are all admitted by the pleadings, except that the defendant denies that the customary cumulated flow of water to plaintiff has been, or is, forty inches of water for four days, or any other number of days, each month, and avers that on the contrary on May 29, 1898, and for some time prior thereto, the customary flow of water to plaintiff through said pipe-line did not exceed fifteen inches of water for two days each month during the irrigating season, and that each year since that date the flow to said premises through said pipe-line has gradually increased. Under this state of the pleadings the fact of plaintiff’s ownership of the right to receive forty inches of water for four days each mopth during the irrigating season, is admitted. The denial extends only to the fact that the plaintiff’s land had not actually received that quantity of water or any quantity in excess of fifteen inches during the time stated, from and after May 29, 1898, and some time prior thereto. It admits that for the last ten years, or more, plaintiff has received.some water through the pipe-line and that his land has been irrigated by that means.