Walker v. Lillingston

GAROUTTE, J.

The present litigation arises between conflicting claims to the use of certain waters of a stream. Plaintiff appeals from the order denying his motion for a new trial, and upon that appeal the sufficiency of the evidence to support the findings of fact and the rulings of the court upon the admission and rejection of evidence alone will be considered. For it is only upon appeal from the judgment that the sufficiency of the findings becomes material.

The facts are these: Pardee and Richards were riparian -owners of a certain tract of land. They conveyed a part of the land to appellant’s predecessors in interest, the deed containing the following reservation: “Reserving and excepting from this conveyance and the premises hereby granted unto ns, said Richards and Pardee, and our heirs and assigns forever, so much water and the use thereof of the said Carpintería Creek as may be necessary to supply and work continuously a No. 5 hydraulic ram, and at such point upon our premises adjoining those hereby conveyed as may at any time be selected by us, said Richards and Pardee, or their assigns, and the right for themselves and for the benefit of and incidental to their said premises and adjoining those hereby conveyed, to appropriate, take, and use said waters from any part of said creek wherever to them may seem proper, providing that they shall turn back into said creek channel all* surplus water or waste water from said ram after the use of the same as above provided.” Defendant is the successor in interest of the remaining portion of the Pardee and Richards land, and claims the right to the use of the water under the aforesaid reservation.

Upon the part of appellant, Walker, it is claimed that the reservation is void for uncertainty in this, that the quantity of water reserved cannot be determined. To this point evidence was introduced, and the court found as a fact “That

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the quantity of water that is necessary to supply and work continuously a No. 5 hydraulic ram is 128 gallons of water a minute, and that the quantity of water that a No. 5 hydraulic ram will pump is sixteen gallons a minute.” Largely upon the strength of this finding the court concluded, as a matter of law, “that defendant is entitled to take from the water of said creek and to use and appropriate to himself, prior and superior to any right of plaintiff, a quantity of water representing a flow of sixteen gallons a minute.” If the quantity of water which may be pumped by a No. 5 hydraulic ram under, any given conditions is a matter susceptible of ascertainment, then the measure here furnished is sufficiently certain. The testimony of the expert witness, Poett, is to the effect that the amount of water that a No. 5 hydraulic ram will pump is a matter of mathematical computation; and he also testified that under the best conditions the ram would pump sixteen and nine-tenths gallons of water per minute.