Pope v. Kinman

By the Court: 1. The patent to the Muscupiabe Ranch was issued in 1872, in the month of. J une, and this action was commenced in May, 1877, and the Statute of Limitations can therefore have no application.

2. For the same reason the defendants can claim nothing as against the owners of the Muscupiabe Ranch, by reason of the lapse of time since their alleged appropriation of the waters of Lytle Creek.

3. No controversy is made in this action as to the rights of those defendants who are riparian proprietors of the stream by reason of their ownership of the San Bernardino Ranch. The principal question presented is, as to whether it is competent to the defendants, by the mere diversion of the waters of Lytle Creek, which is an unnavigable natural stream, flowing across the Muscupiabe Ranch, (the land of plaintiffs) to deprive the plaintiffs of all interest or right of any nature in the waters of [5]that creek. As being owners of the land, the plaintiffs have an interest in the living stream of water flowing over the land: their interest is that called the riparian right. It is not necessary, in this case, to define in detail the precise extent of the riparian right as existing in this country; it is enough to say that under settled principles, both of the civil and common law, the riparian proprietor has a usufruct in the stream as it passes over his land. The judgment of the Court below deprived the plaintiffs of this usufruct, and declares in terms “ that plaintiffs have no right, title, or interest in said waters or any portion thereof.”

The judgment of the Court below is therefore modified so as to read as follows:

First. That the defendants have nothing as against plaintiffs except only such rights as any of them may have of like character with that of plaintiffs as being riparian proprietors of land bordering on said stream.

Second. That none o the dfefendants have any right, title, or interest in plaintiffs’ said premises described in the complaint, and they are precluded from setting up any right, title, or interest in said premises, and particularly from any claims therein to the use of ditches upon plaintiffs’ said premises, or to the waters of said Lytle Creek, except as riparian proprietors as aforesaid.

Third. That plaintiffs have and recover from the defendants their costs and disbursements incurred in this action, amounting to $270.80, together with costs of this appeal.