Yankee Jim's Union Water Co. v. Crary

California Supreme Court Jul 1, 1864Published

Before: Rhodes

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Holding. The court held that a party may acquire title to a watercourse through prescription by demonstrating continuous, uninterrupted, and adverse use for the period prescribed by the Statute of Limitations. The court further held that trial courts have discretion to exclude cumulative evidence offered in rebuttal that merely repeats a party's original case.

Issues

Whether the defendant's answer sufficiently pleaded a defense of title by prescription.
Whether the trial court erred in excluding cumulative testimony offered by the plaintiff in rebuttal.
Whether the trial court's instructions regarding adverse possession and prescription were proper.

Disposition. affirmed

Synopsis

Adverse Possession of Water Right.—The right to the use of a watercourse in the public mineral lands, and the right to divert and use the water taken therefrom, may he held, granted, abandoned, or lost, by the same means as a right of the same character issuing out of lands to which a private title exists. The right of the first appropriator may be lost by the adverse possession of another; and when such person has had the continued, uninterrupted, and adverse enjoyment of the water, or of some certain portion of it, during the period limited by the Statute of Limitations for entry upon lands, the law will presume a grant of the right so held and enjoyed by Mm.

Evidence in Actions for Diverting Water.—In an action for the wrongful diversion of water, where the answer sets up more than five years continuous adverse possession in the defendant, if the plaintiff before resting introduces evidence 1 tending to show his possession during the five years, and the defendant then introduces evidence to sustain the answer, the plaintiff, in rebuttal, may introduce evidence to show that defendant's possession had not been continuous, or uninterrupted, or adverse, but he cannot claim as a right to introduce evidence to prove the same facts that were proved in his opening.

Error in Admitting Testimony Cured by Instructions.—If the Court errs in the admission of testimony during the trial, but afterwards instructs the jury to disregard such testimony, the error is not sufficient to entitle the party objecting to the testimony to a new trial.

Presumption of Grant to Water.—In an action for the wrongful diversion of water, if the jury are satisfied from the evidence that the defendants have been in the continued, adverse, uninterrupted possession, use, and enjoyment of the water in dispute for five years preceding the commencement of the action, they are justified in presuming a grant to the defendants.

Diversión of Water—If A. is the owner of a ditch, and of the right to divert and use the waters of a stream in the same, and B. diverts the waters of the stream at a point above A.’s ditch and uses them for mining, but turns them back into A.’s ditch at another point before A. has use for them, A. has no cause.of action against B.

By the Court, Rhodes, J. The plaintiff is the owner of two water ditches, constructed for mining purposes, which conduct the water from a canon, and the defendant owns a third ditch which heads in the same canon, above the plaintiff’s ditches. The plaintiff claims the right to the water, on the ground of a prior appropriation and a continuous user down to a time subsequent to May, 1861, when, it is alleged, the defendant diverted the water into his ditch. The object of the action is to recover damages for diverting the water, and to enjoin the defendant from the further diversion of it from the plaintiff’s ditches. The defendant had a verdict and judgment, and the plaintiff appeals from the judgment and the order denying the motion for a new trial.

In considering the errors assigned, several points may be passed upon at the same time.

1. The plaintiff was not entitled to a judgment on the pleadings, for the defendant denies the right of the plaintiff, except where the water has receded to four inches, and he sets up title in himself; and we hold that those matters, as set up in the answer, do constitute a defense to the plaintiff’s action.

2. After the plaintiff had rested and the defendant had introduced his evidence, the plaintiff “offered to prove by William McClure, one of the former owners of plaintiff’s ditches, and James McClure, former agent, that in 1853,1854, 1857, 1858, 1859 and 1860, plaintiff had possession of and used in its ditches, during all the summer season except when there was a surplus [the] water in controversy,” and the testimony was excluded on the objection of the defendant. The plaintiff alleges in its complaint that it now owns two ditches; that the ditches were constructed by its grantor in 1851 and 1852; that by means thereof, the plaintiff’s grantors diverted and appropriated the waters of the cañón; that the plaintiff has owned the ditches since August, 1853; and that by means of the ditches, since they were excavated, the plaintiff and its grantors have continuously, up to May, 1861, used, [508]appropriated, diverted and enjoyed the waters flowing down said canon above the plaintiff’s ditches.

The defendant, in his answer, after denying that the plaintiff or his grantors ever had or claimed any right to the water of the canon above where his ditch heads, except as the owners of his ditch permitted them to use such water, avers that he is the owner of said ditch, and that he and his grantors, ever since the summer of 1853, have been the owners and in the peaceable and quiet possession thereof; that the same was constructed, and ever since has been used for the purpose of conveying the waters of said cañón; that they have had the quiet and peaceable possession of said waters, and have continuously, during nine years past, diverted all of said waters that could be conveyed in their ditch; that they had the right so to do; that by “virtue of such continuous use, enjoyment and appropriation of said water,” which use and possession “has been held by them adversely and against all claimants,” the defendant is the owner, and entitled to the use, enjoyment and diversion of said water; and “ that, by reason of the nine years use and enjoyment and diversion, and the adverse possession of the same, he has acquired the title thereto ;” and that the defendant Has never disputed the plaintiff’s title, until the commencement of the present suit.

Yankee Jim's Union Water Co. v. Crary

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