Vincent v. Berry

PRESTON, J.

Plaintiff brought this action to establish his prescriptive rights to the use for nonriparian purposes of a certain quantity of the waters of Poso Creek, Tulare County, and he named as defendants some twenty or more persons who either owned riparian lands or claimed as appropriators, both above and below his property. A number of the defendants defaulted. The rights of all parties who appeared were finally fixed and determined by a written stipulation filed in the action. Judgment was entered either pursuant to such defaults or to the terms of the stipulation and, as far as the appealing defendants are concerned, respondent concedes that said judgment must find its support solely in said stipulation of the parties. Three of the four appealing defendants have failed to urge their claims as they concede that as to them the judgment has sufficient support in said stipulation. Hence there is here before us only the contention of appellant Stegeman that as to him certain provisions of the judgment are broader and more extensive than the terms of the stipulation and consequently the judgment should be modified to conform to the provisions of the stipulation. The parties do not differ as to the intent and purport of the stipulation as to appellant, but they differ only on the question as to whether the judgment faithfully follows the agreement of the parties.

First, appellant complains that whereas the stipulation provides: “None of said defendants . . . shall . . . take from said Posey Creek, or from any branch thereof, or from any creek, spring, or natural watercourse

emptying in

said Posey Creek, any amount of water in excess of the quantities hereinbefore specified the judg

[732]

ment prohibits and restrains him from so taking water from any creek, spring, or natural water course

emptying into or feeding

said Poso Creek. In other words, in the judgment appear the words “or feeding” which are not contained in the stipulation. Appellant fears that this clause in the judgment might be so construed as to deprive him of the right to use any subsurface or percolating waters which find their way into Poso Creek or its tributaries. Respondent concedes that no such restraint was intended by the prohibition placed upon diversion from said creek and submits that the judgment would not support such a construction of the clause. That is, respondent claims that the words “emptying into” and “feeding” are synonymous. as used in the judgment and the addition of the word “feeding” adds nothing to its injunctive force, nor does it in any way extend its terms or make it more inclusive or burdensome than the stipulation. But we think appellant’s fears under this situation may be well founded, for other defendants specially surrendered their rights to claim subterranean and percolating waters in said watershed of Poso Creek and, in defining such surrender, these underground waters were referred to as waters “feeding” said stream.