Wilkins v. McCue

California Supreme Court Jul 1, 1873 No. No. 3,692Published

Before: Belcher

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Holding. The court held that the defendant's answer sufficiently denied the plaintiff's claims of water appropriation and the existence of a natural watercourse, and that no prescriptive right to the water could be acquired against the defendant because the land was held under a government grant until the issuance of the patent.

Issues

Whether the defendant's answer sufficiently denied the plaintiff's allegations of water appropriation and the existence of a natural watercourse.
Whether a prescriptive right to water can be acquired against a title derived from a government grant before the issuance of the patent.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The denial was clearly sufficient to tender an issue.”

“Upon the question of whether there was in fact a natural watercourse from the spring to the plaintiff’s premises the testimony was conflicting, and the decision being against the plaintiff, we cannot upon this ground reverse the judgment.”

“As against this new title no prescriptive right can be asserted, for the reason that there can be no prescription as against the Government.”

Synopsis

Denial of Allegation of Complaint. —■ If the complaint, in an action to enjoin the diversion of water, alleges that the plaintiff has appropriated and used the water for more than five years, and the answer denies that the plaintiff ever at any time used or took up or appropriated the water, the . denial is sufficient.

Idem:—If the complaint in such action avers that from the spring there ran and flowed immemorially upon the plaintiff's premises a constant and never-iailing stream of pure fresh water, and the answer denies that the water flowing from the spring ever at any time ran or flowed to or upon the plaintiff's premises, the denial is sufficient.

New Trial.—If the testimony is conflicting a new trial will not be granted on the ground that the judgment is not warranted by the evidence.

Imperfect Mexican Grant of Land.—If a Mexican or Spanish grant of land was imperfect or inchoate, the fee remained in the Government until the confirmation and final survey by the United Stales, if not until the issuing of the patent. Until then the grantee had only an equitable title.

Title by Prescription. — No right by prescription can be acquired to the use of water as against the Government of the United States.

Prescriptive Right to Use op Water. — If a grant of land by Mexico or Spain was imperfect, no prescriptive right to the use of .water flowing from it can be acquired without an adverse user for five years from the time of a final survey, or the issuing of a patent to the grantee.

Presumption in Favor op Judgment. — If it is admitted by the plaintiff on the trial that he has title under a patent issued for a Mexican grant within less than five years before the commencement of the action, and the defendant recovers judgment, and the plaintiff claims title by prescription, it will be presumed, in support of the judgment, that the grant was an imperfect one and conveyed only an equitable title.

By the Court, Belcher, J.: The plaintiff is the owner of a lot in the Town of San Rafael, in Marin County, upon which she has a dwelling house, a garden for raising fruits and vegetables, and a yard planted in flowers and ornamental shrubs and trees. Upon the sidehill back of the plaintiff’s premises, and on land owned by the defendant McCue, is a large spring, or series of springs, known as the San Rafael or Dixon Spring, a portion of the waters of which for many years has been used by the plaintiff and her grantors for domestic and household purposes,.and for irrigating her grounds. Until 1865, or 1866, the water flowed from the spring to the plaintiff’s premises through a ditch or channel cut in the ground, which, in consequence of the tramping of stock about the spring, and the growth of grass along the ditch, it was necessary frequently to clean out and repair. In 1865 or 1866, the plaintiff’s husband, who then owned the premises, and one Saunders, put down a flume, through which they conducted the water from the spring, about three hundred feet, to a reservoir; and from the reservoir it was taken in iron pipes, about three hundred feet further, to the plaintiff’s premises. Through this flume and the iron pipes the water flowed uninterruptedly from the time they were put down until November, 1869, when the defendant McCue obstructed [659]its flow through the flume and caused it to flow in a different direction.

The action was brought to enjoin the defendants from this alleged unlawful diversion. The case was tried by the Court, and judgment rendered, without written findings, in favor of the defendants. The appeal is from an order denying a motion for a new trial.

1. When the cause was called for trial the plaintiff moved for judgment upon the pleadings, and the motion was denied. This motion was rested upon an allegation in the complaint which, it is claimed, was not denied in the answer, to the effect that the plaintiff and her predecessors in estate had appropriated and used the water for more than five years, “ under continuous claim of right and title, and without interruption, let, hindrance, or molestation, and with the knowledge and acquiescence of defendants, and of their and each of their grantors and predecessors in estate.” The answer denied “ that plaintiff, or any person or persons, by or through whom she holds or claims, ever, at any time, used or took or appropriated all or any portion of the waters rising out of or flowing from any or either of the springs described in said complaint.” The denial was clearly sufficient to tender an issue. It presented the question for determination whether there had been any appropriation of the water by the plaintiff and her grantors; and until that issue was decided in her favor there could be no occasion to go further and inquire about the manner and incidents of the supposed appropriation.

Wilkins v. McCue

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