Lorenz v. Jacob

Morrison, C. J. Plaintiffs commenced proceedings in this case under § 1238 of the Code of Civil Procedure to condemn certain lands belonging to the defendant, for the purpose of a ditch then under process of construction by them.

It is alleged in the complaint that the plaintiffs are now constructing and completing a ditch for the purpose of carrying water from a certain point on Connor Creek to plaintiff's reservoir on Red Hill in Trinity County, and that the uses for which the water is intended and designed are mining and irrigation.

The court below entered a judgment in conformity to the prayer of the complaint, and defendant prosecutes this appeal.

There are two points made by the defendant's counsel which we will briefly consider: first, the findings are insufficient to support the judgment; and second, the evidence shows that the use for which the property is sought to be taken is a private use. The following are some of the findings : —

“ 3. That one of the uses for which the proposed ditch is intended is the sale and rental of water for mining and agricultural purposes.

“9. That the use to which plaintiffs intend to devote the proposed ditch is for the sale, rental, and distribution of water ■ to the mining claims and agricultural land in said Red Hill [74]Mining District, including mining and agricultural land belonging to said plaintiffs, and is not a purely private use.”

At the request of counsel for defendant, the following additional finding was filed by the court: —

“ 5. With the exception of plaintiffs’ own mine the owners of the different mining claims and agricultural lands mentioned could be served with water by means of ditches already in existence, and have been so served with water in former years. The ditches so used have ample capacity to carry the waters of Con-nor’s Creek, except in times of exceptionally high water. Some of these ditches have fallen into disuse or have been worked away, and with the exception of the Connor ditch, the Jacobs ditch, the Mackey ditch, and the Butcher ditch, none of these ditches have rights of water of any value, either for mining or irrigating purposes. To serve the various claims and agricultural lands with water through these old ditches by letting the water run down Connor’s Creek would involve a great waste of water, unless purchasers would take it at all times, night and day.”